ARBITRATION STILL BEST ROAD TO DISPUTE RESOLUTION Adam Tanielian 2012 adam.tanielian@gmail.

com INTRODUCTION: CONSTRUCTION AND DISPUTES ARE CHANGING Technological aspects of construction have become more complex. The business of construction has similarly become more complicated, involving more parties, more foreign participant, more cultures and languages, more applicable laws, which increase the likelihood of disputes. Not surprisingly, the number of construction claims has increased in recent years (Makarem, Abdul-Malak, and Srour 2012; Allen 2011; Ho & Liu 2004). Sweet & Maxwell (2010) found that difficult economic conditions have pressured developers to reduce costs, which in turn led to a 31% increase in the number of disputes forced into arbitration in the UK and Ireland from 779 in 2007 to 1018 in 2009. An EC Harris (2012) study found that disputes worldwide increased in length of time to resolution between 2010 and 2011 the longest in the US (14.4 mos., up 26.3%), followed by Asia (12.4 mos., up 8.7%), then Europe (11.7 mos., up 17%), Middle East (9 mos., up 9%), and UK (8.7 mos., up 28.8%). Despite the rise in time to resolution in the US and Asia, those regions saw decreases in US$ value of disputes in the same time period from $64.5m to $10.5m in the US, and from $64.5m to $53.1m in Asia which Harris attributed to the generally depressed market. Business Strategy Numerous authors have written on the impact on the construction and civil engineering industries made by the global financial crisis (Frei 2010; Nistorescu & Ploscaru 2010; ILO 2009). Although the devastating effects witnessed in 2008-2009 economic and financial crises may not be seen again soon, still more recent statistics suggest the threats are not going away any time soon. Construction companies need to adapt to the new markets by developing and implementing longer-term dispute resolution strategies, utilizing multiple dispute resolution methods (DRMs), including alternative dispute resolution methods (ADRMs). Multiple options are available to parties to disputes and those seeking to prepare for, avoid, or mitigate disputes. Both public and private institutions offer trained, experienced professionals

to assist in the process. Proprietors, partners, managers, engineers, and even experienced foremen generally have knowledge of the most common disputes: changes, incomplete information, ambiguous contractual terms, unrealistic dates and delays. What is dispute resolution? According to Connerty (2006), it is arguable whether non-binding ADR mechanisms such as partnering, adjudication, dispute resolution boards, and mediation are a form of dispute resolution per se or whether they are actually a form of dispute avoidance. Connerty distinguished the full-scale conflict involved in both litigation and arbitration from the types of conflicts resolved through non-binding processes. Although multiple other authors considered negotiation a DRM, Connerty considered it a method of dispute avoidance. Kersuliene, Kazimieras, & Turskis (2010) grouped negotiation, conciliation, mediation, and arbitration together as ADRMs. Chinyere (2011) considered both litigation (binding) and negotiation (non-binding) conventional/traditional DRMs, but labeled arbitration (binding) and mediation (non-binding) as ADRMs. Harmon (2003a) considered all nonlitigation methods both binding and nonbinding as ADRMs. Existing and potential disagreements among authors and experts regarding what qualifies a dispute and what dispute resolution is as opposed to dispute avoidance creates a need to make an operational definition. In this article, a dispute will be defined as only where binding resolution is utilized. Only binding methods will be considered DRMs. Non-binding methods will be considered dispute avoidance or pre-dispute options, which are ADRMs and not DRMs. Purpose of This Study Dynamic new dispute resolution strategies are needed to cope with existing and future changes in the construction industries. Costs and time are of high and increasing importance, especially in developed nations where growth in the short and medium terms is not expected to exceed 4-5%. Prior research has given a relatively clear picture of legal, engineering, managerial and academic opinion on the subject of arbitration, but the fields have seldom been addressed together. This study uses an interdisciplinary approach to provide information and analysis of dispute resolution issues for construction industry professionals who face serious challenges in the coming years. The American Federal Arbitration Act (FAA) is

compared with the Model Law. American and Canadian cases as reviewed. Arbitration is once again endorsed as the best avenue for binding dispute resolution in any jurisdiction, but special attention to American inconsistencies is recommended for domestic arbitration in the USA. TAILOR STRATEGIES TO MEET SPECIFIC NEEDS Culture Chan and Tse (2003) agreed that cultural issues make project management more difficult and contribute to disputes. Gad and Shane (2012) found that international construction disputes accounted for almost 20% of ICC international arbitration cases. Issues relating to culture, economics, trade customs, and cross-cultural psychology are often underlying causes of disputes relating to interpretation of contracts, perceptions relating to time and conscientiousness. Unfortunately, there is no universal definition for culture. Business academics tend to cite the famous Hoffstede (1971) IBM survey studies, but those results are also scrutinized for subjectivity, sampling technique, and due to changes which occurred in the more than 40 years since. Psycho-social divisions within nations, races, religions and larger cultures are constants worldwide. A culture may best be perceived as a collection of subcultures under the rule of state laws, which often supersede and substitute for the softer socio-cultural belief system, although laws are applied and enforced unevenly between jurisdictions and seldom extraterritorially. Culture transcends national boundaries more than domestic statutes and may be more easily implemented at the local level than formal international custom or law. Culture is a bit of a wild card or element of the unknown in the risk management matrix. Although cultural differences have been found to contribute and partially cause disputes, when it comes to dispute resolution, cultural perceptions are less divided. For example, Gad and Shane (2012) made a cross-cultural study of contractors based in English-speaking countries who do business in the Middle East and Asia. All experts in that study recommended arbitration first as a dispute resolution method, above litigation. Enforceability of the decision, Binding outcome, and Time taken to resolve the dispute were three of the top four most important factors influencing expert opinion. Adjudication for Avoidance and Mitigation

Dispute avoidance is a key component to a functional business strategy in any jurisdiction. Skilled, trained and experienced dispute resolution counselors can help firms stay within financial constraints. Numerous authors have taken up advocacy of private adjudication in construction claims (Jaffe & McHugh 2010; Maritz 2009; Ameer Ali 2006). Adjudication is a great idea for pre-dispute stages which has gained significant recognition worldwide. The UK Housing, Grants and Reconstruction Act provides all parties to construction contracts rights to invoke private adjudication as a means of resolving claims. Under the Act, adjudication decisions are binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement. If a dispute can be avoided in this middle step, that may save parties time and money. However, if rights to arbitrate or litigation are invoked after adjudication, the result is wasted time and monetary resources. Arbitration: Best Method Studies have suggested that the presence of a third, independent party significantly improves chances of dispute resolution (Harmon 2003). ADRMs such as dispute resolution boards, mediation, and private adjudication are widely used and recommended by experts, but such ADRMs do not offer any binding resolution, and thus may not resolve a dispute in the medium to long term. Although lex loci and lex fori vary among the worlds jurisdictions, in general, both arbitration and litigation are binding DRMs, which are preferable to many parties to disputes. Arbitration was not as popular as negotiation in a Chan & Suen (2004) study, nor as popular as negotiation or mediation in concurring studies (Harris 2012, Cheung & Suen 2002), but arbitration is nearly always preferable to litigation. Various authors have examined the pros and cons of arbitration versus litigation, and the differences between the two (Stipanowich 2010; Kirbyson 2008; Soderstrom 2005; Resnick 2002). There is some argument about which procedure is preferable, but experts tend to agree that arbitration is faster, less expensive, and more private than litigation, which fits into the new business model better. In cases involving international contracts, support for arbitration significantly increases. Popular opinion among lawyers and other experts suggests that arbitration is the best DRM available. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and implementing statutes certainly help place arbitration alongside and

above litigation. In recent cases where private parties arbitrated claims against states, such as Walter Bau v. Thailand (2009), G.E. Transport v. Albania (2010), and Exxon v. Venezuela (Venezuela vows to reject 2012), some nations showed lack of commitment to the cause of international arbitration when they failed to carry out awards without delay, or bordered on or threatened nonpayment of awards rendered in favor of private claimants. Certain inconsistencies and lacks of commitment to treaty principles leave room for discussion regarding the modification of the international system to protect against noncompliant states. Despite the presence of noncompliance on the state end, most awards are carried out. Public and private endorsement of arbitration via consistent utilization and approval of the arbitral system does validate the process. The one drawback to arbitration is that there is no appeal, but probability of erroneous awards can be reduced with selection of arbitrators based upon expertise and experience in construction and engineering. JUDGES OFTEN ENDORSE ARBITRATION Whereas in centuries past, English and American courts treated arbitration with hostility and skepticism (Kaufmann-Kohler 2005), no such opposition to the private tribunal exists today. In the USA and Canada, there are strong policies favoring arbitration under the American FAA and Canadian Model Law-implementing statutes. Supreme Courts in both countries have commented on the advantages and benefits of arbitration. In Southland v. Keating (1984), the US Supreme Court commented: In enacting 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration. The dissent in the Supreme Court of Canada (SCC) echoed that same pro-arbitration sentiment in Seidel v. TELUS (2011), saying: Access to justice in Canada no longer means access just to the public court system. Historically, judges were reluctant to relinquish their grasp on dispute resolution, and they even viewed alternative dispute resolution as antithetical to the parties interests. This era is gone.

Abella J., delivering the SCC opinion in Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (2011), made clear that arbitration allows the parties to the agreement to resolve disputes as quickly as possible knowing that there is the relieving prospect not of judicial review. Justice Scalia, quoting Stolt-Nielsen v. AnimalFeeds (2010) in AT&T v. Concepcion (2011) in the USA, concurred: In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes the informality of arbitral proceedings is itself desirable, reducing the cost and increasing the speed of dispute resolution. FAA Compares to Model Law Although the FAA is not technically a Model Law-implementing statute, it functions similarly for international cases. In Circuit City v. Adams (2001), Justice Stevens, dissenting, remarked that there is little doubt that the Courts interpretation of the Act has given it a scope far beyond the expectations of the Congress that enacted it. This broad and expanded scope keeps the FAA regime competitive and compatible with the Model Law systems. 5 of the FAA authorizes the court to assist in appointment of arbitrators in a nearly identical fashion to article 11 of the Model Law. Article 16 of the Model Law discusses the competence-competence principle, which the U.S. Supreme Court upheld in First Options v. Kaplan (1995), citing 9-10 of the FAA in the opinion. 7 of the FAA grants arbitrators rights to issue summonses, and in the case that a person refuses to appear, 7 provides that the tribunal may petition the court to compel attendance under threat of penalty for contempt if such a party continues to refuse. The Model Law grants no such authority to arbitrators, although in article 27 it does grant arbitrators rights to apply to a public court for assistance in taking evidence. Article 17 of the Model Law grants tribunals powers to order interim measures, and in article 9 rights for parties to approach a court for the purposes of an interim measure. Although the FAA is silent on interim measures, which has been considered a cause for inconsistent

judgments in U.S. Courts (Eiland 2012), the U.S. 9th Circuit Court of Appeals left the door open on interim measures in Toyo Tire v. Continental Tire (2010), when it held that: a district court may issue interim injunctive relief on arbitrable claims if interim relief is necessary to preserve the status quo and the meaningfulness of the arbitration process. Article 33 of the Model Law and 11 of the FAA are in agreement regarding correction, interpretation or modification of awards. 10 of the FAA outlines grounds for vacation which closely resembles article 34 of the Model Law. Chapter 2 of the FAA cites the New York Convention as the applicable treaty law for recognizing and enforcing foreign arbitral awards, which equates to articles 35 and 36 of the Model Law. FAA in Domestic Cases In cases like Hubert v. Turnberry Homes LLC (2006), state law was superseded by the FAA. FAA pre-emption helps create broader equality between litigation and arbitration when it comes time to enforce and recognize awards. Indiana Code 32-28-3-17, which invalidated arbitration clauses in construction contracts which required arbitration outside of Indiana, was preempted in LaSalle Group, Inc. v. Electromation of Del. County, Inc. (2008). A similar Louisiana law was preempted in OPE Intern. LP v. Chet Morrison Contractors, Inc. (2001). 2 of the FAA requires arbitration clauses to be held valid and enforceable. Courts are frequently requested to compel arbitration under 4 and rarely refuse. One such case of refusal was Hirsch Holdings v. Hannagan-Tobey (2008), where an Oklahoma trial court granted motion to compel arbitration based upon the interrelatedness of two contracts a purchasing agreement with a litigation clause and a patent licensing agreement with an arbitration clause. The appeals court properly reversed the decision in support of reasoning seen in First Options v. Kaplan (1995), wherein Justice Breyer, delivering the opinion for the unanimous court, stated that arbitration is simply a matter of contract between parties; it is a way to resolve those disputes but only those disputes that the parties have agreed to submit to arbitration. In a case relating to construction of an ethanol plant, Delta-T Corp. v. Pacific Ethanol, Inc. (2009), multiple agreements were reviewed by the Federal District Court in Eastern Virginia to determine whether the earlier arbitration provisions were modified by subsequent

agreements. The Court decided that two provisions could be read together to require arbitration, and ordered the parties to proceed to arbitration in another show of strong policy in favor of arbitration. Domestic Courts are most often unwilling to disturb awards, as seen in B.L. Harbert Intl, Inc. v. Hercules Steel Co. (2006), where the Eleventh Circuit rejected a contractors manifest disregard of law claim, calling the erroneous motion to vacate an arbitral award an example of the poor loser problem. In Gissel v. Hart (2009), the South Carolina Supreme Court reviewed an award which was contested on the grounds that factual and legal errors were committed by the arbitrator. The trial court denied motion to vacate and confirmed the award. The appeals court reversed the trial courts decision. The Supreme Court held that the court is not required to review the merits of an award, found no abuse of power, and reversed the appeals court decision, reinstating and confirming the award. Lex Loci Americana When designing a domestic strategy in the US, there are several anomalous cases and statutes which may limit the extent to which courts are willing to compel arbitration or hold arbitration clauses as valid and binding. Kansas Statute 16-121 requires any litigation, arbitration or other dispute resolution procedure arising out of a construction contract to occur within the territory of the state. Arizona Statute 32-1129.05(B) likewise requires any mediation, arbitration or other dispute resolution proceeding arising from a construction contract for work performed in [Arizona] to be conducted in Arizona. In Alley Cat v. Chauvin (2009), the Kentucky Supreme Court held that it does not have jurisdiction to enforce an arbitration agreement under the state Uniform Arbitration Act (KRS 417.045 et seq.) unless the agreement specifies Kentucky as the location of the proceeding. Nebraskas Construction Payment Act LB552 likewise makes any provisions requiring an arbitral forum outside of Nebraska void and unenforceable. Although the Federal Courts are generally more reliable than state courts on the issue of arbitration, as seen in Digital Tech. Licensing v. Sprint Nextel (2011), the District Court may hold not jurisdiction to compel arbitration in a different domestic forum. Further inconsistencies may be witnessed in enforcement and recognition stages because not every state has adopted the manifest disregard of the law doctrine, although the Supreme Court implemented the doctrine and found it within the FAAs scope in Wilko v. Swan (1953). The

doctrine was used in the Oklahoma case Sooner Builders & Investments, Inc. v. Nolan Hatcher Construction Services LLC (2007), but it was rejected as grounds for vacatur in the Minnesota case Itron, Inc. v. WEB Construction, Inc. (2009). RULES OF ARBITRATION To arbitrate or not to arbitrate? That is not the question. The question is where to arbitrate, under what rules and applicable laws. The number of arbitrators and arbitral institutions has increased in the past few decades (Drahozal 2007), which Sweet & Maxwell (2010) said reflects the rise of the number of construction disputes settled in the arbitral process. Due to rises in the number of arbitration service providers, parties to contracts and disputes have more options and considerations. Discretion UNCITRAL, ICC, AAA and LCIA grant broad discretionary powers to tribunals which, combined with the limited ability and will of courts to review awards, is reason to take precautionary measures in selecting arbitrators. Park (2004) reiterated the judicial maxim that one sides delay is the others due process. For this reason, discretion over discovery and expediency of the arbitral process can become a double-edged sword. Tribunals have discretion to control the discovery and hearings processes, which most significantly affect the overall length of the proceedings. Article 20 of ICC rules, article 14 of LCIA rules, articles 17 and 23 of UNCITRAL rules, R-21 and R-23 of AAA rules all provide tribunals with similar discretionary powers which may be used to shorten or extend the length of proceedings. Article 14.1 of LCIA and 17.1 of UNCITRAL rules contain the same directive for tribunals to avoid unnecessary delay [and/or] expense in order to provide a fair and efficient means or process for resolution of the parties dispute. The explicit avoidance of excess cost and delay assures tribunals keep in mind the primary advantages of arbitration as opposed to litigation. Parties to arbitration, too, have discretion over the process which may be used to their mutual advantage. Lacking a fixed institution, UNCITRAL rules offer parties the broadest discretion over design of the process. Justice Scalia, in AT&T v. Concepcion, said the point of

affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. Expediency Excluding outliers, the average time to arbitrate at LCIA (2012) is approximately 11 months. The most common time limit in articles of LCIA rules is 30 days, leading to the relatively short average duration of the process. If the response time can be cut to half or less than the 30 day maximum allowed under article 2, if the Court can expedite the appointment of the tribunal under article 5.4 to 15 days or less, if challenges of arbitrators and to jurisdiction can be avoided, and if written submissions can be furnished in half the maximum time available under article 15.2, then it is feasible that the process may be concluded within 6 months or less. Sussman (2009) found that median time from filing to award in business-to-business cases at the AAA was just under 8 months, with international cases concluding within 12 months on average. The same report found that average time from filing to conclusion of trials in US states and federal courts was between 18.4 and 30.7 months, 43.1 months if appeals were included. 15-day time limits in rules 4, 6, 10, 11, 12, and 13 help keep AAA arbitrations anomalously short in time. ICC cases can easily be resolved within 12 months using time limits from articles 5, 8, 18, and 24. If parties can expedite the initial stages of request, answer, composition of the tribunal, and drawing up of the terms of references, then the arbitral process could easily be concluded within 8 months on average with outliers at half that time. UNCITRAL rules provide the standard 30-day time limits in articles 4, 6, 7, 8, 9, and 13. A long 45-day limit is given in article 25 for communication of written statements. Considering that there is no Court or fixed body overseeing UNCITRAL arbitrations, parties and tribunals must move things along independently. Confidentiality The private nature of arbitration is one of its most attractive features. Public court cases are subject to public exposure, and as such companies run the risk of being embarrassed by rulings against them. When competition in bidding and performance is at its peak, the

importance of a companys image should not be underestimated. Career civil engineers, architects, and assorted construction workers understand that claims and disputes are almost as much a part of the business as port-a-johns, but the last thing marketing and sales departments need is a reputation for delays, cost overruns, and legal disputes. Rules of arbitration offer parties an option to keep everything about the case private, including the existence of the dispute. Article 6 of the Statutes of the International Court of Arbitration in appendix one of ICC rules, and article 1 of the internal rules of the Court state that the entire work of the Court is confidential. Article 30 of LCIA rules resembles article 34(5) of UNCITRAL rules, which require parties to keep all awards confidential unless they agree otherwise. Article 28 of UNCITRAL rules and R-23 from the AAA require hearings be held in private unless parties decide otherwise under UNCITRAL and unless the law requires otherwise under AAA rules. RECOMMENDATIONS Any of the main arbitral institutions offer expertise and experience in dispute resolution. AAA has services customized for the construction industry, so when and if possible, AAA may be the most appealing venue for construction firms. However, if more control over the process is desired by the parties, especially at large firms where personnel and counsel have broad and vast experiences in dispute resolution, UNCITRAL rules may be the most suitable for the speediest awards. Domestic jurisdictions in the USA should harmonize their laws more, but until that time comes, if it ever does, authors of arbitration provisions in contracts need foresee any possible complications relating to the lex loci contractus, lex loci rei sitae, lex loci solutionis, lex loci arbitri, and lex fori. Local contract writers and adequate research prior to issuing contracts is obviously essential. A truly stubborn party to arbitration may be able to stall drive up costs, but with sufficient planning and modern project management techniques which include dispute avoidance and mitigation, there should be no reason to consider it probable that arbitration will result in higher costs and delays than litigation. Although courts have not made a habit of reviewing awards on merits, the probabilities of erroneous awards are similarly low given scrutiny in the arbitrator selection and appointment process. All things considered, arbitration shows up to work and outperforms litigation in the efficiencies where firms need every penny and fraction of a percent today.

List of Statutes AAA Arbitration Rules Arizona Revised Statutes 32-1129.05(B) Convention on the Recognition and Enforcement of Foreign Arbitral Awards the New York Convention ICC Arbitration Rules Indiana Code 32-28-3-17 Kansas Statutes Annotated (K.S.A.) 16-121 Kentucky Uniform Arbitration Act, K.R.S. 417.045 et seq. LCIA Arbitration Rules Model Law on International Commercial Arbitration Nebraska Construction Payment Act LB552 UK Housing Grants, Construction and Regeneration Act UNCITRAL Arbitration Rules US Federal Arbitration Act, U.S.C. Title 9 List of Cases Alley Cat v. Chauvin, 274 S.W.3d 451, 455 (Kentucky Supreme Court 2009). AT&T Mobility LLC v. Vincent Concepcion et ux., 131 S.Ct. 1740, No. 09-893 (Supreme Court of the United States 2011). B.L. Harbert Intl, Inc. v. Hercules Steel Co., 441 F.3d 905 (US 11th Circuit Court of Appeals 2006). Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 194 F.3d 1070, No. 991379 (US Supreme Court 2000). Delta-T Corp. v. Pacific Ethanol, Inc., 2009 WL 77869 (US District Court for Eastern Virginia 2009). Digital Technology Licensing LLC v. Sprint Nextel Corporation, Civil Action No. 07-5432 (SRC) (US District Court for New Jersey 2011). First Options of Chicago, Inc. v. Manuel Kaplan, et ux. and MK Investments, Inc., No. 94560, 514 US 938 (US Supreme Court 1995).

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