100-Day Arbitration: Is The Construction Industry Ready For It?

Article by Prof. John Uff CBE QC ¹

Originally published in Construction Law Journal [Vol. 21 No.1 January 2005].

This article describes the background and features of a new fast-track Arbitration procedure which draws on new possibilities for dispute resolution revealed by Statutory Adjudication. Arbitration retains many advantages over alternative forms of dispute resolution and its perceived disadvantages are now more readily surmounted.

Arbitration has been written off many times in its history, always on account of its currently perceived shortcomings, judged against the latest dispute resolution methods. In the construction industry these have included mediation, contractual Adjudication and dispute resolution boards (DRBs). With the passage of time, all such methods have been found to have both advantages and limitations. In some cases the limitations have even led parties to revert to litigation, with the benefit of various reforms of the court system. The latest dispute resolution method to impact on the construction field is Statutory Adjudication. In the five years it has been in operation, Adjudication has without doubt had a dramatic impact on the conduct of most types of dispute. Yet it too has proved to have its limitations and, unsurprisingly, parties and their advisers are again re-assessing the merits of Arbitration and its ability to overcome the problems of Adjudication. But Arbitration has also moved on and, as part of the re-assessment, consideration must be given to new fast-track procedures developed both in the fields of domestic Adjudication and International Arbitration. As a result, there is now available a 100-day procedure, recently launched by the Society of Construction Arbitrators, representing the fruits of current experience of dispute resolution. The procedure is available on the SCA website at www.arbitrators-society.org.

While every dispute resolution procedure has its current following in the Construction Industry, there can be no doubt that Statutory Adjudication is the predominant procedure currently in use for domestic disputes, whether measured in terms of numbers of referrals or reported cases. There can be few in the UK Construction Industry who have not had some contact with the process, whether directly or through seeing its impact on disputes. Any other form of dispute resolution must, therefore, match itself against Statutory Adjudication in terms of its appeal to the parties. It is also significant that, whatever may be provided in the contract between the parties, the right to refer a dispute initially to Statutory Adjudication can always trump any other method of dispute resolution, even when already embarked upon². Arbitration in any form must, therefore, be truly consensual in that, unless employed after Adjudication, the parties must effectively forego their statutory rights. This applies also to the 100-Day Arbitration procedure, which will normally need express consent as an addition to an existing Arbitration argument. The question to be addressed by prospective users is what has 100-Day Arbitration to offer that Adjudication cannot provide?

A significant drawback of Statutory Adjudication is the "one size fits all" approach. It may be that the draftsmen assumed that disputes would be tailored to fit the time limit but this has not happened. The result is that Statutory Adjudication is not suitable for all the disputes which are currently being referred, as revealed by the enforcement cases. 100-Day Arbitration can undoubtedly offer a range of advantages for the more substantial disputes which are currently being dealt with by Statutory Adjudication. The advantages are to be seen in terms of flexibility of procedure, finality of the result and a greater ability to achieve equality of treatment of the parties. Most of the technicalities to which Adjudication can become subject are readily avoidable through Arbitration and the longer time available will usually result in a decision commanding more respect and acceptance from the parties. The award will be enforceable without undue technicality. Statutory Adjudication has so far produced some dozens of significant Court decisions dealing with various aspects of enforcement. With a few exceptions (such as in the definition of contracts falling within the Statute), the jurisprudence now being created as a by-product of the Construction Act already exists in Arbitration and does not require further expensive legal proceedings to establish ground rules.

It should be remembered that Adjudication was intended to be cheap and informal. In the recently reported decision of the Court of Appeal in Pegram Shopfitters v Tally Weijl³ re-emphasis was given to the policy of the Act of "pay now, argue later". Despite this, Claimant parties continue to demand Adjudication of disputes which are anything but informal, and the proceedings often prove to be increasingly costly. Many will have experienced the inefficiencies of preparing Adjudication cases in response or in reply under very short time limits with consequences in costs. Short-form Arbitration can reasonably claim that it will not be significantly more expensive that Adjudication. In some cases at least it is likely that arbitration will prove to be cheaper

The original proposal is to be credited to Paul Darling QC who, as current Chairman of TECBAR, can be regarded as even-handed as between different forms of non-TCC dispute resolution. The proposal for an effective short-form Arbitration procedure has subsequently been debated on various platforms⁴, and there have been a number of ad hoc procedures devised falling between 28-day Adjudication and conventional Arbitration. It must be remembered, however, that any decision which is intended to be enforceable, must either be binding as a matter of contract (as in the case of Adjudication) or comprise an Award. Only the latter confers the benefits available under the Arbitration Act 1996. The task of producing a standardised 100-day procedure was taken up by the Society of Construction Arbitrators as part of the CIMAR initiative. The current procedure is the product, which still adheres to the originally proposed timescale. While the number 100 does not hold the significance for Arbitrators that it holds for cricketers, it nevertheless represents a reasonable period for "short" Arbitration. It is to be contrasted on one hand to the 28 or 42-day limit for Adjudication and, on the other, to various short forms of Arbitration. These include the ICC Rules which require Awards to be delivered within six months (183 days) of the signing of the Terms of Reference and the same period of six months under various contemporary versions of the GC Works Contracts, but including the exchange of pleadings. Bearing in mind the obvious attraction of expedition, 100 days seemed not only feasible but appropriate.

There is no doubt that the impetus for proposing a viable Arbitration procedure limited to 100 days is to be credited to the introduction of Statutory 28-day Adjudication. The Construction Industry and the legal industry that it supports have learned a number of valuable lessons from the experience. First, Adjudication has established or re-established that serious disputes can be resolved in days rather than years. The ability to do so was seemingly lost to English Arbitration during the last half century, although surviving in other jurisdictions. Secondly, Adjudication has re-established the credentials of the "trade" or professional Arbitrator or Adjudicator. The use of non-legal arbitrators is a tradition largely confined to Common Law countries and one which was fast declining during the 1980s and 1990s as Arbitration procedure became more technical and the proceedings were taken over by Lawyers. While parties perhaps reasonably concluded that only a Lawyer Arbitrator could control the proceedings, this represented a great loss not only of tradition but of the ability to make proper use of the Tribunal’s own expertise. Adjudication has established that trade or professional Arbitrators can operate effectively, making full use of their expertise so as to comply with tight time limits. It is not to be forgotten that the power of the Statutory Adjudicator to use his or her initiative to ascertain the facts and the law was one of several provisions lifted from the Arbitration Act 1996 and inserted into the Scheme for Adjudication.

It is relevant that the question frequently raised in 1996 "what is Adjudication" generally received no answer. Neither Adjudication nor Arbitration has any statutory definition. It is now clear that Adjudication is not sui generis and that there is no conceptual difference between Adjudication and Arbitration other than through the particular powers and constraints to which each process is subject. It is the powers and constraints that call for comment, not the process itself.

Most time-limited procedures simply leave the details to the Arbitrator or Adjudicator to work out, implicitly requiring him or her also to determine what steps are to be covered within the procedure to be ordered. The 100-Day Arbitration Procedure, which owes its parentage to the CIMAR Rules, adopts a more structured approach setting out a series of steps to be followed adding up to 100 days. The arithmetic is not itself the problem. What is required is a proper apportionment of the available time and this is dealt with by a series of "not more than" directions contained in Rule 4 covering:

• Service of outstanding pleadings, witness statements and Expert reports

• Service of further documents relied on and Reply statements or reports

• Service of documents requested for disclosure

• An oral hearing not exceeding ten working days

• Final written submissions

• Award within 30 days of the end of the oral hearing

Rule 6 sets out a number of express powers which the Arbitrator may adopt which have been refined from various rules and procedures available elsewhere and which have been found to be useful and workable. Among these may be mentioned the calling of witnesses to give evidence together ("back-to-back") which is now commonly adopted between experts of like discipline, and can be equally effective as between opposed witnesses of fact. Rule 6(7) includes the express power to require two or more witnesses and/or experts to give their evidence together. This rule permits the use of witness "conferencing", a relatively new procedure by which, in lieu of calling witnesses separately to give their evidence, The Arbitrator examines all the witnesses together. The process has been described in a paper given by Dr Wolfgang Peter to the London Branch of the Chartered Institute of Arbitrators in September 2004. The process has the capability of greatly reducing the time taken to adduce evidence with the added advantage that rebuttal testimony is immediately available with in the hearing room. Dr Peter reported that both clients and lawyers had expressed satisfaction that the process allowed them adequate opportunity to present their cases within a much shorter time than is conventionally required.

A major departure from Adjudication is that the 100-Day Arbitration timescale does not commence until both parties (not simply the Referring party) have served a pleading. Where the Respondent to the Arbitration serves a Counterclaim, the 100-day period does not start until a defence to the Counterclaim is delivered. The purpose of adopting this approach is to establish the principle of equality of the parties, seemingly lost in Adjudication. The right to initiate proceedings with little or no warning is one of the less attractive features of Adjudication. As HH Judge Wilcox accepted in London & Amsterdam⁵ "mere ambush, however unattractive, does not necessarily amount to procedural unfairness". It is plainly permitted if not encouraged by the legislation. To extend the period of 28 days to 100 days would do nothing to avoid the same possibility. Indeed the likelihood that 100-Day Arbitration would be used for more substantial cases would make it more likely that Respondents would suffer the consequence of ambush. The solution adopted is to give both parties the same opportunity to present their cases initially and to apply the time limit to the subsequent proceedings. This brings the procedure more in line with the ICC Rules, where the Terms of Reference will usually be preceded by a relatively full exchange of pleadings from the parties.

The procedure deals expressly with the award of costs, which will be subject to supportive provisions of the Arbitration Act 1996. There is a perceived dichotomy of view as to whether Adjudicators should be empowered to award costs, the general rule being that no such power is to available. It will be recalled that one of the worst abuses permitted by the Construction Act is a contractual provision binding the Referring party to pay the costs in any event. It may also be recalled, although now becoming a matter of history, that during the debate on the Arbitration Bill in 1995 there was a majority against repealing what is now Section 60 of the Arbitration Act 1996, which renders invalid any agreement that a party is to pay the whole or part of the costs of the Arbitration in any event, unless made after the dispute has arisen. It follows that the parties, upon contracting into the 100-Day Procedure can agree to pay their own costs (or one party can agree to pay all the costs) but the default position remains the conventional one by which the Tribunal is empowered to award costs. Perhaps the more important point is to encourage the parties to minimise their costs or at least to observe proportionality.

The points summarised above include finality and flexibility. There will be some cases in which finality is not of any advantage, being typically those concerning disputes about interim payments. Adjudication (whether contractual or statutory) is particularly suitable for such disputes, allowing the parties to leave over Final Account issues to be resolved at a later stage. Statutory Adjudication is, however, also regularly used for disputes where finality is of the essence. The reported enforcement cases include some dealing with issues of professional negligence and at least one dealing with an issue of termination. In all such cases it is difficult to see how the real interests of the parties will be served by a decision, often involving a substantial investment of resources by the parties, which is immediately open to rehearing. One of the material advantages of Arbitration is the knowledge that the decision will be relatively final. To this may be added the ability, under English Law, to contract either into or out of a right of appeal on issues of law, so that the parties can, in effect, choose the level of finality that they wish to give to the decision. As regards flexibility, Adjudication often leaves little choice in the procedure to be adopted. The longer period available for 100-day Arbitration will plainly give the Tribunal more scope for adopting the best procedure for the dispute. In addition, while the Arbitrator (like the Adjudicator) has no power himself to extend the period, Section 50 of the Arbitration Act 1996 empowers the Court, in an appropriate case, to extend the time, thus removing the absolute bar which an intransigent party is entitled to insist upon in Adjudication.

A further suggested advantage of Arbitration is the avoidance of technicalities. Regrettably some types of Adjudication are beset with particular jurisdictional issues concerning whether or not the "dispute" has crystallised and whether, given the nature of the dispute, a procedure complying with the demands of Natural Justice is possible. The issues are raised before the Adjudicator as a prelude to the dispute on enforcement. These principles continue to develop through case law and it may be that the final ground rules are still to emerge. It must be remembered that Adjudication issues have reached the Court of Appeal on only a handful of occasions and no issue has yet emerged suitable for the opinion of the House of Lords. The impact of the Human Rights Act 1998 remains in the wings and could ultimately play a significant part in determining what can properly be Adjudicated. The point to be made is that Arbitration has substantially overcome problems of this sort, and has already developed well-established ground rules. While jurisdictional points are not uncommon in Arbitration, they can now be dealt with under the Arbitration Act 1996 in a flexible manner, allowing the Tribunal to take decisions where appropriate. Procedural objections are necessarily more disruptive in Statutory Adjudication given the 28 or 42-day time limit by which the Adjudicator remains bound.

Among the other advantages of Arbitration already mentioned is ease of enforcement. This is dealt with expressly under Arbitration legislation with the added advantage of a considerable volume of existing case law, so that parties are not regularly forced into expensive enforcement actions. A further problem in some reported Adjudication cases has been the quality of decision-making. No doubt a major factor is the time available to the Adjudicator to reach his decision. Where parties forego rights of appeal on most grounds, they should be entitled to expect a reasonably competent decision reflecting the merits of the dispute. This is only likely to be achieved when the Tribunal has sufficient time in which to reach its decision.

The published version of the Procedure contains a simple adoption clause that may be incorporated into a contract at the initial stage or at any later stage. The procedure may be incorporated leaving Statutory Adjudication as a further option, where it applies; or alternatively the procedure may be adopted after one of the parties has already initiated Adjudication proceedings, having the effect of turning the Adjudication into an Arbitration. The adoption clause thus covers (i) a dispute arising in the future or (ii) a dispute which has already arisen, as well as (iii) a cross-claim arising out of such a dispute. Alternatively the clause may cover (iv) a dispute which has already been referred to Adjudication or (v) a cross-claim arising out of such a dispute. Implementation requires the agreement of the parties as well as the Arbitrator. The printed form itself provides for signatures and may be adopted as a freestanding Arbitration agreement.

Thus the ways in which the 100-Day Arbitration Procedure may be used are the following:

1. The adoption of alternative (i) will operate as a severable Arbitration Agreement in relation to an identified contract in respect of future disputes. The 100-Day Procedure cuts in either at the date of service of the Statement of Defence (or Defence to Counterclaim) or when the Arbitrator gives the 100-day directions. Prior to that point the Arbitrator will have all the powers deriving from the Arbitration Act 1996 to direct appropriate dates for service of the pleadings antecedent to the 100-Day Procedure.
2. The Procedure may be adopted ad hoc for an existing identified dispute as alternative (ii) and optionally for any cross-claim (iii) arising out of that dispute. This may cover the situation in which there is no pre-existing Arbitration Agreement or Arbitrator, or a situation in which there is an existing Arbitrator and in which some or all the pleadings have already been served. The 100-Day Procedure again cuts in either when the pleadings are complete or when the Arbitrator gives his directions.
3. The Procedure may be adopted for a dispute already set out in a Notice of Adjudication where the parties wish to adopt short-form Arbitration instead. The reference covers the original Adjudication dispute as alternative (iv) and optionally a cross-claim (v) arising out of that dispute. The parties will normally want to re-appoint the Adjudicator as an Arbitrator and the procedure will cut in in the same manner as above.

The 100-Day Procedure is capable of adoption in any jurisdiction, subject to the effect of any mandatory legal rules. In practice the total span of the proceedings (including preparation of responsive pleadings) could exceed six months, in which case the procedure would operate as an agreed extension in countries which require the award to be delivered within six months. Rule 7 of the Procedure refers to the power of the Court to extend the time for making the award. Whether or not such power exists depends on the Law of the State having supervisory jurisdiction over the proceedings.

There is no reason why the Procedure should not be adapted so as to operate under the supervisory rules of any selected institution. The LCIA Rules, 1998, so provide in the following terms:

A supervising institution would be available to deal with matters such as determination of the seat of the Arbitration (in the absence of Agreement), the holding of deposits or a challenge to the Tribunal.

International Arbitration remains important to the UK Construction Industry and its legal industry at a number of levels. A significant proportion of UK trade in construction, as in other fields, is international, a large proportion of that being with the European Union which continues to expand. While a number of foreign jurisdictions are experimenting with the use of Adjudication, Arbitration remains the predominant means of dispute resolution internationally and is usually the only alternative to submitting to the jurisdiction of a foreign National Court. It is therefore important for the Construction Industry to maintain its expertise in Arbitration and for the UK to be seen to make its contribution to the development of International Arbitration. The 100-Day Procedure will contribute to the maintenance of Arbitration expertise within the UK and may be adopted elsewhere as a new and viable procedure for International Arbitrations.

The 100-Day Procedure uses some but by no means all of the powers available under the Arbitration Act 1996. Of particular note is Section 39 (power to make provisional award). A provisional award can include an order for the payment of money or any other relief and will be binding on the parties in exactly the same way as an Adjudication decision. Section 39 in fact provides a close analogy to Adjudication but with greater flexibility: the Arbitrator is empowered but not obliged to give a provisional decision and the timing is a matter of discretion. These matters could readily be provided for by further rules. The significant difference between the powers under Section 39 of the Arbitration Act and Adjudication is that an order or award given under Section 39 is subject to the final decision of the same Tribunal. The parties therefore have the option of reconvening the hearing before the same Tribunal to review the provisional decision. Section 39 was seen as a valuable adjunct to existing Arbitration law and of great potential use to the Construction Industry in particular. As a result of the simultaneous passing of the Housing Grants, Construction and Regeneration Act 1996 those powers remain largely untested in the Construction field. Section 39 has, however, been successfully used in a construction-related case concerning ship building and the Provisional Award issued by the Tribunal after a hearing lasting only a matter of days was approved by the Court of Appeal⁶.

Despite the opportunities presented by Section 39 it is not included within the 100-Day Procedure. This step was considered at the drafting stage but not adopted for a number of reasons. First it introduced more complexity to an otherwise simple procedure. Secondly, the parties remain free to contract into (or out of) Section 39. Thirdly, the ability to give a provisional award capable of being reopened (whether by the same or a different Tribunal) would put the Arbitrator into a virtually identical position to an Adjudicator, but with some additional advantages. Such a procedure would not necessarily require 100 days and should in any event be seen as a separate alternative procedure suitable for some but not all types of case. A separate "provisional Arbitration" procedure remains a future option.

The 100-Day Arbitration Procedure presents an alternative to Adjudication, comprising a single stage process which is likely to be found more suitable for both disputes of moderate complexity and those disputes which call for a final and binding decision. The Procedure set out in the Rules represents best practice in fast-track dispute resolution. Given the need for agreement of the parties, 100-day Arbitration should not be subject to the type of procedural or jurisdictional objection which currently hampers many Adjudications.

100-day Arbitration is available in a variety of situations including adoption after an initial reference to Adjudication. The adoption provision contained in the Rules incorporates a waiver of the Right to Adjudicate. This will have contractual force only but it is unlikely that the parties, having agreed upon the 100-Day Procedure, would have any reason to revert to Statutory Adjudication rights.

A significant feature of the 100-Day Procedure is that it reinstates the principle of party autonomy, which was the keynote of the Arbitration Act 1996. Instead of non-waivable statutory rights, the parties are free to amend and adapt the 100-Day procedure in any way they wish. Thus, in appropriate cases it may become the "28-day Arbitration Procedure" or equally the "200-day Arbitration Procedure". The procedure is intended to be kept under regular review.

100 Day Arbitration Procedure

1. Where the parties and the appointed arbitrator agree to adopt this procedure the arbitrator shall have an overriding duty to make his Award deciding all matters submitted (excluding liability for costs) within 100 days from either;

1. the date on which the statement of defence (or defence to counterclaim, if there is one) is delivered to him or to the other party (whichever is later); or
2. if the statement of defence (or defence to counterclaim) has already been delivered); from the date on which the arbitrator gives his directions.

2. Reference to days are calendar days unless otherwise noted. Any period set by this procedure that would end on a Saturday, Sunday or any public holiday at the seat of the arbitration will be deemed to end on the following working day.

3. The arbitrator shall, as soon as he is appointed or on the adoption of this procedure if later, contact the parties’ representatives by the most rapid and practical means (such as email or fax) to give them the opportunity to comment on the periods and dates to be ordered for the procedural steps in Rule 4.

4. Within 7 days of his appointment or of the adoption of this procedure if later, the arbitrator shall by directions establish a procedural timetable to include an overall period of no longer than 100 days to run from the service of the statement of defence (or defence to counterclaim, if there is one) or from the date that the arbitrator gives his directions (whichever is later) that shall provide for:

1. service of any outstanding pleadings (including replies if considered necessary) and statements of witnesses and experts’ reports, if not already served with the pleadings, within 7 days;
2. service of all further documents relied on by a party, replies to statements of witnesses and experts’ reports and service of any requests for disclosure of specific documents by the other party, within 14 days thereafter;
3. subject to any ruling by the arbitrator on any issue as to disclosure of documents, service of copies of documents specifically so requested within 7 days of the request;
4. no further documents or other evidence to be served by either party unless requested or permitted by the arbitrator;
5. a date for an oral hearing or hearings not exceeding 10 working days, to commence not more than 28 days after conclusion of the foregoing steps;
6. final written submissions (if ordered by the arbitrator) to be served simultaneously within 7 days from the end of the hearing;
7. the arbitrator to make his Award within 30 days of the end of the oral hearing.

5. For the purpose of achieving the foregoing maximum time periods, the parties agree to cooperate and to take every opportunity to save time where possible.

6. The arbitrator, for the purpose of achieving the foregoing time limits, may do any of the following at any time:

1. order any submission or other material to be delivered in writing or electronically;
2. take the initiative in ascertaining the facts and the law;
3. direct the manner in which the time at the hearing is to be used;
4. limit or specify the number of witnesses and/or experts to be heard orally;
5. order questions to witnesses or experts to be put and answered in writing;
6. conduct the questioning of witnesses or experts himself;
7. require two or more witnesses and/or experts to give their evidence together.

7. The parties may agree to extend the period of 100 days. The arbitrator has no such power save that the arbitrator or any party may apply to the Court under Section 50 of the Arbitration Act 1996 (Extension of time for making award) or under other powers available at the seat of the arbitration.

8. Not later than 14 days before the Award is due, the arbitrator shall send to the parties his reasonable estimate of the total fees and expenses incurred and likely to be incurred up to the making of the Award (including VAT if applicable). Provided the parties have paid this sum to a stakeholder acceptable to the arbitrator with the monies held to the arbitrator’s account (or to the arbitrator himself) the arbitrator shall have no lien over the Award.

9. Unless they agree otherwise the parties shall make simultaneous submissions on costs to the arbitrator within 14 days of the date that the Award is published and the arbitrator shall make his Award on costs within 14 days of receipt by the arbitrator of the submissions.