2019 Edinburgh Adjudication & Arbitration Conference Slides

2019 EDINBURGH ADJUDICATION & ARBITRATION CONFERENCE
15TH
MARCH 2019 SCOTTISH ARBITRATION CENTRE
CONFERENCE
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2019 EDINBURGH ADJUDICATION
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DRINKS
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MANY THANKS TO
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AND NETWORKING SESSION

2019 LONDON
ADJUDICATION
& ARBITRATION
CONFERENCE
22 AUGUST 2019

2019
EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘WELCOME’
Sean Gibbs from UK Adjudicators

ADJUDICATOR
NOMINATING BODY
INFO@UKADJUDICATORS.CO.UK
WWW.UKADJUDICATORS.CO.UK

2019
EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘WELCOME’
Brandon Malone
Scottish Arbitration Centre

The Scottish Arbitration
Centre and ICCA 2020
Brandon Malone FCIArb
Chairman

The Scottish Arbitration Centre
• Established 2011
• Members
• CIArb
• Law Society of Scotland
• RICS
• Scottish Government
• Objects
• Promote arbitration in Scotland
• Promote Scottish arbitration to the world

Promoting arbitration in Scotland
• Domestic strategy
• Spread knowledge of arbitration
• Encourage use of arbitration in appropriate circumstances
• Encourage cooperation and knowledge sharing between Scottish Arbitral
Appointment Referees
• Annual training day
• CIArb/Law Society local faculty training
• Encourage domestic arbitration initiatives
• Organise events and publicise the arbitration events of others
• Work with non member bodies to encourage use of arbitration

Promoting Scottish Arbitration to the World
• Ensuring a Scottish presence at major international events
• Providing Scottish entries to global arbitration guides
• Participating in international arbitration organisations, including ICCA,
IBA, LCIA, etc
• Thought leadership in international arbitration
• ICCA/NYC Bar/CPR Institute Working Group on Cybersecurity in International
Arbitration
• Silicon Valley Arbitration and Mediation Centre International Taskforce on
Technology and Arbitration
• IBA Access to Justice Committee
• Alliance for Equality in Dispute Resolution

Promoting Scottish Arbitration to the World
• USP – Energy Arbitration
• Joint project with CEPMLP

The Future
• We are currently looking at providing bespoke rules and/or
administration services in Energy arbitration and dispute resolution
• The biggest project on the horizon at the moment is ICCA 2020

2019 EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘UK ADJUDICATION’
Lisa Cattanach from CDR

Providing effective solutions to construction disputes
UK Adjudicators’ Conference
Adjudication Over The Years
Presented by
Lisa H Cattanach
15 March 2019

Housing Grants Construction and Regeneration Act 1996
• Introduced statutory adjudication to the UK construction industry
• A quick and cost effective means of resolving disputes
• Particularly payment disputes
• Key aims of statutory adjudication:
• Reduce litigation to encourage productivity in the industry
• Improve cash flow – the ‘lifeblood’ of the industry
• Prevent ‘subbie bashing’ and other forms of power abuse
• Produce decisions on dispute during the course of projects to maintain relationships on site to the benefit of
projects

• Perceived benefits of statutory adjudication:
• Speed and cost
• Raising and resolving disputes in the course of projects ensures facts are fresh in parties’ minds
• ‘Nip it in the bud’
• Proactive and inquisitorial approach of the adjudicator
• Privacy and confidentiality
• Potential to protect working relationships

• The Act stated that all construction contracts (as defined by the Act) must provide for statutory
adjudication
• Minimum requirements (s.108):
• Enable a party to give a notice of adjudication
• Provide a timetable for submissions
• Require the adjudicator to make a decision in 28 days
• With the potential to be extended to 42 days with the Referring Party’s agreement
• And potential to be extended further with both Parties’ agreement

• Minimum requirements, contd. (s.108):
• Impose a duty on the adjudicator to act impartially
• Enable the adjudicator to ascertain the facts and the law relevant to dispute
• Provide for the decision to be binding until final determination
• By agreement, arbitration or law
• Provide that the adjudicator is not liable for anything done/not done or omitted
• Unless acting in bad faith

• The Scheme for Construction Contracts (Scotland) Regulations 1998
• Amended by: The Scheme for Construction Contracts (Scotland) Amendment Regulations 2011
• The Scheme for Construction Contracts (England and Wales) Regulations 1998
• Amended by: The Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment)
(England) Regulations 2011 [or: (Wales) Regulations 2011]

• Key differences between Scotland/England & Wales Schemes:
• 28 days for Decision:
• Scotland: Calculated from date of Referral
• England & Wales: Calculated from receipt of Referral
• In practice, likely to be the same, but potential differences may arise
• Receipt of the Referral
• England & Wales: adjudicator must inform parties when Referral received
• Scotland: no such obligation
• Ties back to above – relevance of receipt in England & Wales
• Matters to be decided:
• Scotland: Adjudicator shall decide the matters in dispute “and may make a decision on different aspects of the dispute at
different times”
• England & Wales: Adjudicator shall decide the matters in dispute.

• Depending on the Parties’ contract, different procedural rules apply
• Standard form construction contracts provide for the Scheme for Construction Contracts
• If the Parties contract does not provide for any of the minimum requirements, then the Scheme
for Construction Contracts applies

• Perceived shortcomings of 1996 Act:
• Did not cover oral contracts
• Blocking a number of parties from accessing adjudication, particularly smaller players
• Parties sought to introduce obstacles to adjudication with ‘Tolent’ clauses
• Bridgeway Construction Ltd v Tolent Construction Ltd [2000] C.I.L.L. 1662 QBD (TCC)
• Did not rule out pay when certified clauses
• Perceived failure to set out suitable repercussions for non-compliance with notice provisions
• SL Timber Systems Limited v Carillion Construction Limited [2001] ScotCS 167

Local Democracy Economic Development and Construction Act 2009
• Key changes to the 1996 Act introduced by the 2009 Act:
• Oral contracts now covered
• Tidied up position regarding ‘Tolent’ clauses
• Introduced right of suspension of performance for non-payment
• Pay when certified clauses banned
• Amended payment provisions – payment notices firmed up
• Introduced slip rule
• Key to adjudication – allowing adjudicator to correct clerical or typographical error within 5 days of issuing Decision

The Changing Face of Adjudication
• Statistical returns based on referrals via ANBs
• Historically, around 90 – 95% of all referrals
• 10% increase in Year 20 (May 2017 to April 2018) on Year 19 (May 2016 to April 2017)

• Trend line generated by stats is straight line at 1,500 per year
• Linear trend indicates continuous pattern of rising and falling numbers
• Could recent case law regarding payment notices have impacted?
• Brexit uncertainty?
• New ANBs emerging in market in late 2017 / early 2018

• Number of lawyer adjudicators steadily increasing in recent years, but may be reaching a
plateau:
• Year 17 (May 2014 to April 2015): 32.5% of adjudicators
• As a result of a more legalistic approach?
• More legally complex disputes being referred to adjudication
• Adjudication becoming a more trusted means of resolving disputes? ‘Tried & tested’
• Or causing a more legalistic approach?

• Rising costs of adjudication
• More qualified adjudicators?
• Greater prevalence of representatives (especially legally qualified)?
• More complex disputes?
• Research carried out in 2016 found only a weak link between complexity and total fee
• Research carried out in 2016:
• Average adjudicator’s hourly fee = £210
• Range of adjudicators hourly fees = £95 to £330
• Average total fee per adjudication around £9,000
• Highest total fee captured in dataset = £46,000
• But, almost 75% of adjudications captured in dataset had total fee of < £10k

• Very rarely do we now see parties self-representing
• More popular when statutory adjudication first introduced
• Aligned with ethos of keeping costs down
• Greater distinction from more formal legal processes of dispute resolution
• Parties now take a more tactical approach to adjudication
• ‘Catch the adjudicator out’
• Previously (and way it should be) – help the adjudicator as best as Parties could
• To reach the right decision

• Procedural differences – Then:
• Meeting with Parties individually?
• Taking phone calls from Parties?
• Noting key points at any meetings and issuing brief summary of discussions
• Adjudicators ‘rolled up sleeves’ and got on with determining dispute – a more inquisitorial approach
• Advice received from expert advisors not always disclosed

• Procedural differences – Now:
• Hearings with both parties and representatives in attendance
• Recording proceedings
• Ardmore Construction Ltd v Taylor Woodrow Construction Ltd [2006] CSOH 3
• Conference calls – no calls from only one party
• Discain Project Services Ltd v Opecprime Development Ltd [2001] EWHC (TCC) 435
• Natural justice
• Jurisdiction challenges increasingly prevalent
• Less pragmatism from representatives?

• Procedural differences – Now (cont’d):
• More experts involved – both by Parties and by Adjudicator
• Rise in Post-PC disputes
• Rather than during the progress of the job as envisioned
• More complex disputes
• Value of disputes on the rise
• The most recent research in this regard covered year to Oct 2015
• Majority of referrals in value range £10k to £50k
• Parties unfazed by rising costs of adjudication?
• But steady increase in disputes in value range £1m to £5m

Summary and Conclusions
• Are the procedural differences for better or for worse?
• More formal process
• Parties know where they stand?
• Or inaccessible to ‘laymen’?
• Legal representation
• Rising costs of adjudication
• More legalistic approach
• But, gives credence to adjudication as a valid form of dispute resolution
• Natural justice and jurisdiction challenges more prevalent
• More headaches for adjudicators
• But, encourages adjudicators to ‘play fair’ and focuses mind on process
• What does the future hold?

QUESTIONS?
Pavilion 1
291 Springhill Parkway
Glasgow Business Park
Glasgow G69 6GA
Tel: 0141 773 3377
Email: lhc@cdr.uk.com
LinkedIn: Construction Dispute Resolution
www.cdr.uk.com

© Dispute Resolution Board Foundation 2019
Copyright © Dispute Resolution Board Foundation 2019
Dispute Resolution Board Foundation. Moving projects forward since 1996.
Disputes Avoidance and Adjudication
Under Dispute Boards
John Papworth
Edinburgh, 15 March 2019

Outline
Types of DBs
Jurisdiction of DB
Dispute Avoidance
Dispute Adjudication
Some photographs
Conclusions

Types of DBs
DRB – mainly North America, but also ICC
DAB – 1999 FIDIC
DAAB – 2017 FIDIC
DB – generic name, but also FIDIC Pink Book
CDB – ICC

Jurisdiction of DB
DB Agreement – may incorporate other documents
General Conditions of DB Agreement
Procedural Rules
In FIDIC 2017 – Clause 21
ICC Model DB Agreement

Dispute Avoidance
Unique to DBs
Early appointment of standing DB
Keeping up to date
Site visits
Open discussion

Informal Opinions
At Parties’ request,
or DB’s initiative and Parties’ agreement
Provision in FIDIC
Can be used with 1999Yellow and Silver
Provision in ICC Rules
Beware meeting one Party alone

FIDIC 2017
Sub-Clause 21.3
Joint request of Parties
DAAB may invite request
At any time, except while 3.7 in operation
Preferable for both Parties to be present
Advice not binding

ICC Rules
01 October 2015
Article 16 – Avoidance of Disagreements
Article 17 – Informal Assistance with Disagreements

Dispute Adjudication
FIDIC 2017 – Sub-Clause 21.4.3 – 84 days
Procedural Rules
ICC 2015 – Article 19 to 22 – 90 days
Some observations from the DB
Hearings
Encourage settlement

Informal Discussions at Site Meetings
All present
DB to stay together
Use of skills and experience
Include in report in broad terms
Encourage discussion

Expropriation of Land

Quarries & Borrow Pits 1

Quarries & Borrow Pits 2

Care of the Environment 1

Health & Safety

Examples of Use of Open Discussion (2)
Measurement issues – description of filling operations
Was something built or not?
Unforeseeable ground conditions

Earthworks Descriptions

Unforeseeable Conditions 1

Examples of Use of
Informal Opinions
Can be used with FIDIC 1999Yellow and Silver
Payment in separate currencies
Interpretation of incorrect Cost adjustment data table
Parties’ shares of extra DB fees

Currencies of Payment

Price AdjustmentTable 1

Price AdjustmentTable 2

During Dispute References
Still an opportunity to use discussions and opinions
DB to use knowledge of project to assist in scope of dispute
Suggest narrowing of dispute
Initial decision on one point of principle can save time and money

Settlement After Decision

Presence of a DB 1

Presence of a DB 2

Presence of a DB 3

Conclusions
DBs offer opportunities for dispute avoidance
Early appointment
Deal with early problems – access, late information.
Set a tone.Ask,‘Have you considered doing this?’
Use the time with them
Dispute management by DBs

The DB as aTeam

ThankYou
 DRBF: www.DRB.org
 www.FIDIC.org
 www.ICCWBO.org/dispute-resolution-
services/dispute-boards
 www.JohnPapworth.org
 Email: JohnRobertPapworth@gmail.com
John Papworth
DRBF Representative to the UK

2019 EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘ARBITRATION’
Hew Dundas

Scotland’s Place in
the Arbitral World post-2010
a presentation by
HEW R. DUNDAS
Chartered Arbitrator DipICArb
Arbitrator, Mediator, Expert Determiner

OVERVIEW of PRESENTATION
 The Bad Old Days
 Arbitration (Scotland) Act 2010
 7th June 2010 – Scotland a World Leader ?
Where are we now ?
 Developments since 7th June 2010
UNCITRAL Rules 2010
New Legislation/Institutional Rules
 Hot Topics
 Clouds
 Conclusions

The BAD OLD DAYS
 No Comprehensive Statute
 Acts of 1593, 1695, 1894, 1972, 1990
 Fatally Flawed Introduction of Model Law
 Case Law dating back to 1208
 Key decisions are18th & 19th century
 Many Giant Anomalies & Omissions
No inherent power to award damages, costs or interest
Kompetenz-Kompetenz ‘outlawed’
 1972 Act and Stated Case Procedure

ARBITRATION (SCOTLAND) ACT 2010 (1)
 In force 7th June 2010
 Extensive consultations (CIArb 42,000 words)
 Irish Act in force on 8th June
 Numerous innovative features
 18 Significant Advances on AA96
 S.6 – law governing the arbitration agreement ?
 AARs
 Solution to the Gannet/Cetelem/other problems

ARBITRATION (SCOTLAND) ACT 2010 (2)
 Comprehensive Statute
Scottish Arbitration Rules
Simplicity of Language
 Unified Regime Domestic/International
 Model Law Consistent
 Compatible with All Major Rules
 Importance of ss.26, 32

BUT ... UNFINISHED BUSINESS
 Errors & Omissions
Inadvertent Omission of s.2(2)-2(5) AA96
S.16 not yet brought into force
R09/R51 jurisdictional issue – 1491/1610 cases
 Judicial Interpretation
R58 curveball
 UNCITRAL Rules 2010
Not incorporated in ASA10 … BUT
No changes needed to ASA10
 Scottish Arbitration Code 2007 cancelled

NEW LEGISLATION
 2009/12 Singapore
 2011 France, HK, Spain, Việt Nam
 2012 Australia, Cayman Islands
 2016 Poland
 2017 Hungary, New Zealand
 2018 British Columbia, UAE
 Many others

NEW LEGISLATION PENDING
 Sweden 2019
 Switzerland - probably 2019/20
 England & Wales ???
 PRC ???
 Switzerland ???

NEW INSTITUTIONAL RULES
 ICC – 1/1/12
 CIETAC – 1/5/12
 Switzerland – 1/6/12
 CEAC – 1/10/12
 HKIAC – 1/5/13
 LCIA – 1/7/14
 VIAC, DIS (2018) & many others

OTHER DEVELOPMENTS
 New Arbitral Centres
Bahamas
Cyprus
Goa
Mauritius
New York
Sydney
Toronto
Maybe Rockall next ???

INTERNATIONAL “HOT TOPICS”
 Diversity
 Appointment Procedure
 Emergency Arbitrator
 Conflicts and Disclosure
 Role of Counsel
 Tribunal Secretaries
 Third Party Funding

SCOTTISH “HOT TOPICS”
 ICCA 2020
 Arbitration post-Brexit
 Arbitration post-Independence ??? IF ???
 Volume of Domestic Arbitration
 Take-up Still Low
 Prejudice based on Bad Old Days
 Professional ignorance
 Spreading the Word

CLOUDS on HORIZON
 Reliance on Court Procedures
 Court-based Rules of Evidence
 Arbitrator Delay – G1 Ventures
 Survival of the “Old Way”
 Rejection by Commercial Parties
 Arbitrator Ethics

CONCLUSION
THANK YOU for
your ATTENTION
today

2019 EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘EXPERT EVIDENCE IN ADJUDICATION
& ARBITRATION’
Iain Aitchison of Ankura

114
The Expert: to assist the Tribunal
2019 EDINBURGH ADJUDICATION & ARBITRATION CONFERENCE

115
Introduction
Context and Background

116
Context
 Viz Moot on International Arbitration [Jurisdiction, Merits]
 Non-lawyers as arbitrators
 Expert Witness in Arbitration
Introduction
London Vis Pre-Moot 2018:
“We’ve had great feedback from the students, with several commenting how they appreciated the different
approach that an expert brings to the panel.”
Background
 Construction claims and disputes [active administration of dynamic provisions]
 Further emancipation of Expert Witness from Witness of Fact, reflecting expanding clarification of the
tension between overriding to duty to Court, and a parallel duty to the instructing client [Jones v Kaney
2011]
 Questions of whether more regulation will drain or improve the pool of Experts [CIArb Resolver, 2018]

117
Historical Origins
Folkes v Chadd 1781

118
Wells Harbour began to silt up. The Harbourmaster (‘Commissioners’) blamed their Landlord:
 The 1st Trial took place in August 1781 in Norwich
 The Harbour commissioners fielded local pilots, mariners and seamen as experts
 The landlord presented Robert Mylne FRS, Architect and Engineer as Expert
 Robert Mylne’s evidence was persuasive and accepted
 The Commissioners objected to the doctrine and reasoning of Robert Mylne
Folkes v Chadd (1781) – 1st Trial
The Kings Bench judges ordered a 2nd Trial for July 1782 on the following reasoning:
“the reasonings of men of science can only be answered by men of science.”
The Commissioners appointed 4 further experts: Grundy, an Engineer; Nickalls an appointed Engineer to the
Thames Commissioners; Hogard a specialist in Fen drainage; Hodskinson a land surveyor and VP of Society of Civil
Engineering (now the ICE). [‘more experts’]
The Landlord, Martin Browne Folkes, appointed John Smeaton FRS, considered at the time to be the leading
expert on harbours in England. Smeaton had consulted on 30 harbours in England and Scotland and had recently
rescued Ramsgate Harbour from similar problems.
March 1782: Smeaton studies the harbour before writing his report starting with a theoretical treatise on the
general laws governing such harbours and the relevant facts. [Methodology]

119
 The 2nd Trial took place in July 1782 in Norwich
 The Landlord relied on a local barrister
 The Commissioners relied on George Hardinge, barrister of Middle Temple and solicitor-general to Queen
Charlotte (wife of King George III)
 The jury were given the expert reports a week before the trial [Submission of Expert Reports]
 Hardinge did not call his experts, but relied on mariners and navigators to relay their experience [Respondent’s
Experts not called to give oral testimony]
Folkes v Chadd (1782) – 2nd Trial
Chief Justice Gould accepted Hardinge’s argument that Smeaton’s evidence:
“… could be no foundation for the verdict of the jury.”
Hardinge objected to Smeaton being called to stand:
“… was matter of opinion, which could be no foundation for the verdict of the jury, which was to be built entirely
on facts, and not on opinions.”

120
 The 2nd Trial took place in July 1782 in Norwich
 The Landlord relied on a local barrister
 The Commissioners relied on George Hardinge, barrister of Middle Temple and solicitor-general to Queen
Charlotte (wife of King George III)
 The jury were given the expert reports a week before the trial [Submission of Expert Reports]
 Hardinge did not call his experts, but relied on mariners and navigators to relay their experience [Respondent’s
Experts not called to give oral testimony]
Folkes v Chadd (1782) – 2nd Trial
Chief Justice Gould accepted Hardinge’s argument that Smeaton’s evidence:
“… could be no foundation for the verdict of the jury.”
Hardinge objected to Smeaton being called to stand:
“… was matter of opinion, which could be no foundation for the verdict of the jury, which was to be built entirely
on facts, and not on opinions.”

121
 Lord Mansfield’s responded to the Commissioner’s request for a 3rd Trial:
Folkes v Chadd (1782) – (no) 3rd Trial
Lord Mansfield
“The question then depends on the evidence of those who understand such matters; and when such questions
come before me, I always send for some of the brethren of the Trinity House. I cannot believe that where the
question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to
be received. Hand-writing is proved every day by opinion; and for false evidence on such questions a man may be
indicted for perjury.”
“Therefore we are of opinion that his judgment, formed on facts, was very proper evidence.”
Kennedy v Cordia (Services) LLP [2016] UKSC 6
“Whether the proposed expert evidence will assist the court.
Whether the witness has the necessary knowledge and experience.
Whether the witness is impartial in their presentation and assessment of the evidence.
Whether there is a reliable body of knowledge or experience to underpin the evidence.”
 The modern test in the UK builds on Lord Mansfield’s landmark decision:

122
 Lord Mansfield’s responded to the Commissioner’s request for a 3rd Trial:
Folkes v Chadd (1782) – (no) 3rd Trial
Lord Mansfield
“The question then depends on the evidence of those who understand such matters; and when such questions
come before me, I always send for some of the brethren of the Trinity House. I cannot believe that where the
question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to
be received. Hand-writing is proved every day by opinion; and for false evidence on such questions a man may be
indicted for perjury.”
“Therefore we are of opinion that his judgment, formed on facts, was very proper evidence.”
Kennedy v Cordia (Services) LLP [2016] UKSC 6
“Whether the proposed expert evidence will assist the court.
Whether the witness has the necessary knowledge and experience.
Whether the witness is impartial in their presentation and assessment of the evidence.
Whether there is a reliable body of knowledge or experience to underpin the evidence.”
 The modern test in the UK builds on Lord Mansfield’s landmark decision:

123
Wells Harbour – 200 years later
Navigation:
“The bar and entrance vary in depth and position, buoys
are altered to suit … best to follow fishing vessel or take a
pilot.”
Note on Chart:
“Channel shifts; buoys are moved as required.”

124
Wells Harbour – 200 years later
Navigation:
“The bar and entrance vary in depth and position, buoys
are altered to suit … best to follow fishing vessel or take a
pilot.”
Note on Chart:
“Channel shifts; buoys are moved as required.”

125
Construction
A source of many complex disputes

126
 Contracts made up of drawings, specifications, bills of quantities, and contract conditions
 Construction contracts [dynamic provisions]
 In 2015 construction disputes made up 25% of the cases before the ICC, the largest percentage on a single
subject matter by a significant margin (2015 ICC Dispute Resolution Statistics)
 Exceptionally complex disputes
 Expert Evidence
Construction Disputes and Arbitration
Kiefer and Cole, 2017 in Guide to Construction Arbitration
“Disputes concerning issues of time, cost and quality frequently give rise to the need to analyse and assess the
cause of project delays through complex schedule analyses and expert testimony. Technical evaluation and
testimony from experts is also often needed to address defects arising from the design and construction of
complicated equipment. Complex issues of loss and of quantum of claim are common, requiring the input of expert
quantity surveyors or quantum specialists.”

127
 Delay
 Quantum
 Technical
 Forensic Accounting
 e-discovery
Experts and Construction Arbitration
Kiefer and Cole, 2017 in Guide to Construction Arbitration
“It is difficult to overstate the importance of experts in the proper resolution of construction disputes. Thorough
and convincing expert testimony can help a party prevail on any of the host of issues that typically arise in
construction disputes. Experts in construction matters are often used to decipher engineering standards, analyse
schedule delays, perform forensic accounting and find the root causes of defects. Expert opinions are not limited to
these core issues, however, and can speak to everything from market conditions for loss of revenue claims to
weather patterns for claims of force majeure. At bottom, a single arbitration can find itself dealing with the
opinions of a number of experts, each of which will be expected to testify at the eventual hearing.”

128
The SCL Protocol, 2nd Edition (2017)
“A focus of the Protocol therefore is the provision of practical and principled guidance on proportionate measures
for dealing with delay and disruption issues that can be applied in relation to all projects, regardless of complexity
or scale, to avoid disputes and, where disputes are unavoidable, to limit the costs of those disputes.”
Society of Construction Law (‘SCL’) Protocol
 The SCL Protocol aims to give guidance on common issues of extension of time and cost
 Transparent unified approach, understanding of programmed works, records, allocation of responsibility for
delay and disruption events [methodology]
 Not contractual, and not specific to any standard form contract, provides guidance for the management of
change [dynamic provisions]
 Benchmark of ‘good practice’, does not detract from participants striving for ‘best practice’
 Balanced, aims to reflect interests of all parties in the construction process
 Updated English (2017), available in French (2018) [ICC in Paris]

129
The SCL Protocol, 2nd Edition (2017)
“The contemporaneous submission and assessment of EOT claims (rather than a ‘wait and see’ approach) is
elevated to a core principle.”
“In referring to ‘delay’, the Protocol is concerned with time – work activities taking longer than planned. .. This type
of analysis is necessary to support an EOT claim by the Contractor.”
EOT should be granted to the extent that the event is reasonably predicted to prevent the works being completed
by the then prevailing contract completion date. … Assessment should be based on an appropriate delay analysis,
the conclusions derived from which must be sound from a common sense perspective. … Where the full effect of
event cannot be predicted with certainty, grant an EOT for the then predictable effect. Consider the EOT at
intervals as the impact unfolds, and increase the EOT if appropriate. (SCL, 5,6,7).
SCL Protocol and Adjudication
Gorse, Ellis, Hudson-Tyreman (2005)
 Timescales associated with adjudication often necessitate board-brush assessments, made on limited evidence
(Bradley 2001) [‘rough justice’]
 Planning and delay analysis are subjective processes [baseline, methodology, records]
 CPM and contemporaneous data are best tools available to plan and track events
 Demonstrating delay, even with advanced tools can be difficult and time consuming Reliability and validity is
often challenged (Farrow 2001; Redmond 2002; Hullett 2003)
 ‘Prospective’ analysis time-distant from the delay event may not be appropriate [‘as-built’]

130
Eroded Immunity
Cutler v Dixon 1585 to Jones v Kaney 2011

131
Cutler v Dixon 1585
Establishes privilege for Witnesses as protection from defamation
Stanton v Callaghan [CA] [1999]
Production of the report and content of the experts’ joint statement was protected
Confirmed an immunity over 400 years old (Cutler v Dixon 1585)
Arthur JS Hall & Co v Simons [2002] 1 AC 615
Protection for evidence in Litigation/Arbitration, or work in anticipation of expert evidence
Reasoning for expert witness was based on advocates’ immunity
Origin and Tradition of the Expert’s Immunity
Lord Hobhouse in Arthur JS Hall & Co v Simons [2002]
“A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their
participation … Thus the court, judge and jury, and the witnesses including expert witnesses are granted civil
immunity. This is not just privilege for the purposes of the law of defamation but is a true immunity.”

132
Jones v Kaney [2011] UKSC 13
 At first instance decided that expert enjoyed immunity Stanton v Callaghan [CA] [1999]
Expert’s Immunity becomes limited
 Public Policy no longer gave an immunity from negligence for Expert Witnesses
 Discussion if removing the immunity would have a “chilling effect” on willingness of experts to participate in
legal proceedings, as experts can abandon the expert field
 One legal training consultant remarked that it marks the “end of the amateur expert”
Lord Dyson
“If the expert gives an independent and unbiased opinion which is within the range of reasonable expert opinions.
He will have discharged his duty both to the court and his client.”
Lord Phillips
“The object of the immunity is not to protect those whose conduct is open to criticism, but those who would be
subject to unjustified and vexatious claims by disgruntled litigants”.

133
Practitioner issues
 PI Insurance [negligence]
 Resist pressure to change opinion [stay independent]
 Be more cautious of binding agreement [consider impact on outcome of the case]
 Keep client informed if/why opinion has or could change [transparency and records]
Industry issues
 Closer scrutiny of the solicitor’s advice (testing of issues relevant to change(s) in opinion)
 Tighter controls on availability of insurance (if acting as Expert), so increased supervision by the Insurer, in
parallel a regime requiring an Expert to be insured for negligence claims
 Transition from voluntary to mandatory accreditation as Expert for regulated professions
 Closer cooperation of professional institutions [expanding regulation and supervision]
Changing Times
Jackson (2018)
“Increasing pressures to limit and focus expert evidence;
Restrictions on who can give expert evidence and when;
The problem of serving two masters has become more acute;
Growing demands for clear and concise expert reports/joint statements.”

134
Objectivity
Impartiality, Privilege

135
Mark Kantor (2010)
“The incentive (the moral hazard) to present an opinion harmonious to the engaging party is in fact present from
the very first contact with the party or counsel regarding the expert’s possible engagement, regardless of the
obligation to maintain objectivity. Some prospective experts resist that lure while others succumb.”
Impartiality
 The Expert’s credibility relies on the Expert’s impartiality [objectivity]
 Expert Shopping once in litigation, jettison of expert may lead to report’s disclosure (Beck v MoD [2005] 1 WLR
2206; BMG (Mansfield) Ltd v Galliford Try [2013] EWHC 3183 (TCC))
Edward Lifescienes v Boston Scientific [2017] EWHC 405 at [46]
“This must be put into perspective. Rarely, if ever, is an expert witness wholly objective by the time of the trial.
Such is the effect of being part of a litigation team for which the focused goal is, understandably, winning the
argument. And, after all, there is a selection process.
Nevertheless many experts find it possible to make appropriate concessions where their honest views require
agreement with a point being put by counsel. No expert may be entirely objective but many are willing at least to
give priority to assisting the court with accurate and helpful technical evidence.”

136
Doug Jones (2010)
“It is likely that a court or arbitral tribunal would benefit from greater transparency as to how experts came to
develop their opinion. […] Moreover, ensuring that all communications between him and herself and the party by
whom he or she is appointed are made available may be a good way to remind the expert that their overriding
duty is to the court or tribunal and not to that party”.
Privilege
 Working papers (documents requested, documents requested but not given notes from interviews, timelines,
chronologies, programmes, benchmark dates, ebb and flow towards a cogent, concise, and formal opinion)
[seeking out and listening to the evidence]
 Privilege, general non-discovery CIArb Protocol, Article 5(2) [‘Working Papers’]
 Closer scrutiny of agreement of instructions, and if any opinion given before appointment [Similarities to
interviewing arbitrators]

137
Custom and Practice
Market, Tribunal, Regulation

138
Forum
 ICC or TCC experience (QC, leading judges or arbitrators)
 Oral testimony (‘gold standard’)
 Adjudication (documents only, so written only)
 Advisory only, so effectively a consultant (duty only to instructing client)
Individual
 Reputation (recommendations, listings, rankings)
 Relevant expertise and experience (technical expertise and experience as expert)
 Availability (overlapping prep/hearing periods)
 Price (market rate)
Team
 Independent capability v assisted capability
 Risk of dilution of skill (speaker v analyst)
 Value of expertise (technical programming, data analysis)
 Differentiation of testifying expert from expert support
Market

139
Bad Expert
 Partisan
 Badly prepared
 Under qualified
 Strays from true expertise
Focus
 Tribunal can appoint expert to test underqualified expert evidence
 Partisan expert may be less partisan when influence of counsel is reduced, and exposure to opposing expert is
increased (entrenched, unwilling to engage)
 Badly drafted report (clarity, reasoning, conclusion), try to elucidate expert opinion
 Questions to narrow issues, and improve assistance from expert
Intervene
 Overtly partisan, incomplete evidence, or straying expert evidence is simply not probative
 Focus X-exam on areas where expert is expert
 Use questions (tribunal, counsel) to explore issues and elucidate the expert’s true opinion
 Disregard the ‘hired gun’, but do not ignore the ‘diamond in the rough’
(Ambrose, Naish, 2016)
Tribunal

140
(‘Pool’ of experts)
 Seasoned professional experts with track record in X-exam in TCC or ICC arbitration
 Experts supported by assistant(s) with more specialized skills (or available time)
 Consultants with some experience as an ‘ad-hoc’ adjunct to mainstream practice
 Claim consultants most expert at making the case for the instructing party
 Experts with no experience of formal proceedings but with pertinent expert knowledge
 Willing young professionals looking for that elusive first appointment
(Regulated Professions)
 Professional Bodies add competency framework(s) for Expert Witness activities [RICS]
 Accredited Expert Witness, route through mandatory training
 Direct access for experienced Expert Witness, subject to interview
 President’s Panel for accredited Expert Witness
 Anchoring of Expert Witness within established professional standards, to a ‘gold standard’
 Arguably may not currently acknowledge that Expert Witness can be the core/sole practice
Regulation

141
Arbitration and Experts
Institutional Rules, Expert Witness Protocols

142
Zachary Burley, 2015 on ‘The Idea of Arbitration’
“An arbitrator’s capability is based on his or her understanding of the debate.”
The Idea of Arbitration
Jan Paulsson (2013) in the ‘Idea of Arbitration’
“The idea of arbitration is that of binding resolution of disputes accepted with serenity by those who bear its
consequences because of their special trust in chosen decision-makers.”
 Choice of Arbitrator(s) for a balanced tribunal (if 3, consider a construction professional)
 Case Management Skills [ICC report on Construction Industry Arbitrations, 2019]
 Adoption of Institutional Rules, Meta-Rules, and Expert Witness Protocols
 Pre-Arbitral steps (‘DAB’), Intra-Arbitral steps (‘mediation window’)

143
Klaus Sachs with Nils Schmidt-Ahrends (2011)
“… the 1985 UNCITRAL Model Law on International Commercial Arbitration (the Model Law) – the mother of most
modern arbitration laws – deals in Art. 26 only with experts appointed by the tribunal. Party-appointed experts are
only mentioned in the context of the parties‟ right to put questions to the tribunal-appointed expert at the
hearing. However, there is no doubt that evidence by means of party-appointed experts is admissible under the
Model Law. This principle follows from the parties‟ general right to submit evidence pursuant to Sect. 23(1) of the
Model Law. It includes the right to present expert evidence from their own party-appointed experts.”
“However, there is a clear trend in international arbitration to rely primarily on the testimony of party-appointed
experts, with tribunal-appointed experts being used only in exceptional circumstances.”
Experts under the Model Law
 Model Law deals primarily with tribunal-appointed Experts [to assist the Tribunal]
 Trend is for party-appointed experts [control]

144
Tribunal Appointed Experts
UNCITRAL Arbitration Rules 2010 (as amended), Article 29(1):
“After consultation with the parties, the arbitral tribunal may appoint one or more independent experts to report
to it in writing, on specific issues to be determined by the arbitral tribunal. A copy of the expert’s terms of
reference, established by the arbitral tribunal, shall be communicated to the parties”.
LCIA Rules 2014, Article 21.1: “The Arbitral Tribunal, after consultation with the parties, may appoint one or more
experts to report in writing to the Arbitral Tribunal and the parties on specific issues in the arbitration, as identified
by the Arbitral Tribunal”.
Experts and Institutional Arbitration Rules
Party Appointed Experts
UNCITRAL Arbitration Rules 2010 (as amended), Article 27(2):
“Witnesses, including expert witnesses, who are presented by the parties to testify to the arbitral tribunal on any
issue of fact or expertise may be any individual, notwithstanding that the individual is a party to the arbitration or
in any way related to a party”.
LCIA Rules 2014, Article 20.3:
“[The Arbitral Tribunal] may allow, refuse or limit the written and oral testimony of witnesses (whether witnesses
of fact or expert witnesses)”.

145
“Most institutional rules are not much more specific than the national arbitration laws when dealing with expert
evidence.”
“… the IBA Rules set forth rather comprehensive and well-balanced rules for each of the two procedures, however,
without giving any preference. Both procedures are dealt with on an equal footing, which should not come as a
surprise since the IBA Rules have an overall tendency to find compromise solutions between civil law and common
law practices.”
IBA Rules
Article 5 [‘party’]
 Party can appoint own expert
 Required content of an expert report
 Obligation to appear to give testimony at a hearing
 If reports submitted on related issues but disagree, a meeting to narrow and/or agree
Article 6 [‘tribunal’]
 Right of Tribunal to appoint expert (after consulting with parties on ‘ToR’)
 Parties have right to raise objections (within time limit set by tribunal)
 Expert to request material and to set out the method, evidence and information in report
 Parties right to question the Tribunal’s expert, including by their own expert

146
“Although national laws, institutional rules and other sets of rules, such as the IBA Rules, do not favour one type of
expert testimony over the other, there is no doubt that, as of today, the standard approach in international
arbitration proceedings is to rely primarily on the testimony of party-appointed experts, with tribunal-appointed
experts being used in exceptional circumstances.”
Party Appointed
 representing the position of the instructing party [‘Hired Gun’]
 Lack of clarity
 Lack of coordination with opposing expert
 Inefficient testing of the positions; developed points may not be helpful to the tribunal

147
“In light of these criticisms, the obvious response appears to be that tribunals should instead seek to appoint their
own “independent” experts. However, such approach also suffers from a number of disadvantages and gives cause
for substantial concern.”
Tribunal Appointed
 Common Law perspective: party cannot control a critical element of the case [control]
 Tribunal appointed expert may render a report without sufficient or relevant facts
 Just as likely to have a lack of clarity as the parties’ expert(s)
 Risk that the case could be decided by expert and not tribunal [chosen decision-maker]

148
Art. 5(3) of the IBA Rules reads as follows:
“The Arbitral Tribunal in its discretion may order that any Party-Appointed Experts who have submitted Expert
Reports on the same or related issues meet and confer on such issues. At such meeting, the Party-Appointed
Experts shall attempt to reach agreement on those issues as to which they had differences of opinion in their
Expert Reports, and they shall record in writing any such issues on which they reach agreement.”
Pre-Hearing Meeting
ICC “Techniques for Controlling Time and Costs in Arbitration” (2012) at [67]:
”Experts will often be able to narrow the issues in dispute if they can meet and discuss their views after they have
exchanged reports. Consideration should therefore be given to providing that experts shall take steps to agree
issues in advance of any hearing at which their evidence is to be presented. Time and cost can be saved if the
experts draw up a list recording the issues on which they have agreed and those on which they disagree.”
 Starting point and structure of involvement is relevant to costs [manage]
 Steps to narrow issues are taken after report but before hearing [narrow]

149
CIArb Protocol (Party-appointed and Tribunal-appointed Experts)
“Where two or more experts of the same discipline are used, it is possible to direct a ‘witness conferencing’ so that
the experts can be simultaneously examined in relation to the same issue or issues in dispute. Such a procedure is
likely to reduce time and cost.”
Witness Conferencing
Art. 8(2) of the IBA Rules reads as follows:
“The Arbitral Tribunal, upon request of a Party or on its own motion, may vary this order of proceeding, including
the arrangement of testimony by particular issues or in such a manner that witnesses presented by different
Parties be questioned at the same time and in confrontation with each other.”
 Arguably mitigates against the risk of partisan experts [promotes objectivity]
 Promotes a relationship between opposing experts as they sit together for the questions
 Saves time and costs if managed well
 Counsel need to be ready to use opportunities to intervene
 Questioner needs to be ‘up to speed’ on the expert evidence [understanding the debate]
 Experts need time to prepare to for witness conferencing [‘hot tub’]

150
“Based on the terms of the protocol, the expert team prepares a preliminary joint report which is circulated to the
tribunal and the parties. The parties and the tribunal are given the opportunity to comment on this preliminary
report. The experts then review these comments and take them into consideration in preparing their final joint
report which will be submitted to the parties and the tribunal.“
Finally, upon request by one of the parties or the tribunal, the members of the expert team shall be present at the
evidentiary hearing and they may be questioned by the tribunal, the parties or any party-appointed expert on
issues raised in the experts report.”
Expert Teaming (‘Joint Expert’)
 Importance of the terms of reference to prevent the experts deciding the dispute [‘ToR’]
 Experts are ‘tribunal appointed’ (Section 1049(3) of German Code of Civil Procedure and Article 27(5) of Swiss
Rules, tribunal-appointed experts are subject to the same rules on independence and impartiality as the
members of the tribunal)
 Lord Woolf’s introduction of single joint expert (‘SJE’) concept was not hugely popular ... “Everyone liked to
have their own expert as part of the team”. (Jackson, 2018)

151
Code of Conduct
Max Abrahamson (1987)
“If experts were always expert in the first place, fewer arbitrations would be necessary: and if they could agree in
the second place, many arbitrations would be shorter.”
“An expert’s acceptance and performance of such a code [conduct of experts] would be a prerequisite of credibility.
In any case, a lawyer has at least one useful role of advising his client to choose the best expert money cannot buy.
That advice is justified (amongst other reasons) because an experienced judge or arbitrator can usually tell the
difference: and if there be any doubt the expert may have to answer questions in cross examination on which the
above roles he thinks he is playing, and what his opinion may be next week if he were on the other side (perfectly
legitimate questions, although of course he can perjure himself in reply).”
 “best expert money cannot buy” [expertise, integrity]
 Code of Conduct for Experts

152
CIArb Protocol (Party-appointed and Tribunal-appointed Experts)
“The CIArb Protocol can be used in its entirety by the arbitral tribunal directing (or the parties agreeing): ‘Expert
Evidence shall be adduced in accordance with the CIArb Protocol’.
Alternatively, the CIArb Protocol can be used in part or as a guideline for developing procedures to be adopted.”
Key Principles
- each Party is entitled to know, reasonably in advance of any Evidentiary Hearing, the expert evidence upon
which the other Parties rely;
- experts should provide assistance to the Arbitral Tribunal and not advocate the position of the Party appointing
them;
- these principles should be established before any Evidentiary Hearing, to the greatest possible degree of
agreement between experts.
CIArb Protocol
 The CIArb Protocol applies only to party-appointed experts
 Structured on similar lines to the IBA Rules [builds on existing ‘meta rule’]
 Differs from the IBA Rules in providing for experts’ meeting before reports are produced

153
Conclusion
Evolution not Revolution

154
Birch (2005)
“I believe that it is often forgotten that there is seldom one truth and this applies not only in factual situations, but
in relation to expert evidence as well. Equally eminent experts from the same field may hold different opinions,
each validly held.”
Evolution not Revolution
 To retain ‘un-regulated’ status experts must show they meet the ‘higher standard’
 Further efforts towards, definition and coordination of, international ‘best practice’
 Closer network of Meta Rules and Protocols [IBA, CIArb, SCL]
 Earlier involvement of Experts (dispute avoidance, pre-emptive efforts) [before v after]
 More creative use of Experts within tighter regulatory frameworks [creativity v integrity]
 Principles of Court extending into Arbitration (overriding duty to Court, professional duty) [predatory ‘best
practice’]
 Emergence of Expert Witness as a form of Professional Practice, or Profession [EWI, AE]
 Codes of Ethics and Conduct [lead through institutional arbitration]

155
Thank You for listening
Any questions?
Iain Aitchison
LLM MArch FDBF FCIArb
Managing Director
Global Construction Practice
Iain.Aitchison@Ankura.com

156
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MURRAY ARMES
SENSE STUDIO

2019
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CATHERINE GILBERT
TEMPLE BRIGHT

2019
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NATASHA PETER
GIDE LOYRETTE NOUEL

2019
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LOUISE WOODS
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DONNY MACKINNON
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2019
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CONFERENCE
‘Third Party Funding of
Adjudication & Arbitration’
Andrew O’Connor of
Augusta Ventures

Third Party Funding of Adjudication & Arbitration
Andrew O’Connor, Investment Manager, Augusta Ventures
15 March 2019

What is third party funding?
• Third party funding provides a solutions to manage the cost and risk of adjudication, arbitration and litigation.
• Third party funders provide finance to cover all or part of the costs of conducting a claim, including legal fees,
barrister fees, expert witness fees and other disbursements.
• Funding is “non-recourse” which means that funders are only repaid if the claimant is successful. If the claim is
unsuccessful, we are not repaid.

Why consider third party funding - claimants
• Businesses are able to monetise claims without downside risk
• Reduced legal expenditure frees up cash flow for core operations and investment
• Claimant will receive the benefit of a claim if it is successful, representing a risk-free source of revenue
• Legal department shifts from being a “costs centre” to a positive source of revenue for a business
• Strategic implications for a claim that is funded

Why consider third party funding –
lawyers/advisors
• Positions firms to attract new clients and to offer innovative arrangements to existing clients
• Removes the tension that can arise with clients around fee negotiation and late payment
• Increases the pipeline of work for the disputes team
• Secure monthly cash flow
• Reduced CFA and DBA exposure

Market Trends – What developments are we
seeing?
Sophisticated Clients
Clients seeking risk management
tool for claims that they can afford
to run.
Portfolio Funding
Dedicated facilities for funding all
claims in respect of a particular
project.
Construction Claims
Funding for claims of delay, variation,
defects, including by way of
adjudication.
Commercial Decision Making
Clients seeking to pursue claims that
may once have been overlooked in order
to preserve relationships.
Direct Contact
Corporates contacting funders
directly to discuss funding options.

What should a claimant/law firm look for in a
funder?
Process Price
Ongoing
involvement
Timescale

What do funders look for in a claim?
1. Likelihood of success and anticipated damages
• Opinion on prospects of success
• Assessment of realistic quantum
2. Enforcement and recoverability
• Solvency and asset position of the respondent
• Strategy for enforcing award
3. Clear budget for conducting the claim
• No minimum or maximum budget size
• Ratio of budget to damages must be at least 1:5 for funding to be viable

Pricing and Economics
• Funder’s return generally equal to the greater of:
o a fixed multiple of the funds deployed; or
o a fixed percentage of the total recovery.
• Funding is deployed in tranches based on key procedural and settlement milestones. If a claim settles,
funder’s return is based only on the tranches deployed.
• To encourage settlement and to reflect the risk of a final hearing, the uplift applied to later tranches is
higher than the uplift applied to earlier tranches.

Portfolio Funding
• “Portfolio” funding is an efficient option for claimants seeking to conduct multiple claims.
• A dedicated facility is provided to fund all claims that meet a minimum qualifying criteria.
• All funded claims are “pooled” under the single facility, which reduces risk and improves price for the
claimant.
• Price is agreed in advance and fixed for all funded claims.

Worked Example #1 – Adjudication Funding
• Facility Description: Non-recourse facility to fund the cost of conducting adjudication in respect of Sub-
Contract Interim Account
• Amount Claimed: £3,300,000
• Facility: £170,000
• Tranche Structure:
Tranche Amount Phase
Tranche 1 £100,000 Preparation of claim
Tranche 2 £70,000 Post Referral Notice

Worked Example #2 – Arbitration Funding
• Facility Description: Non-recourse facility to fund the cost of arbitration relating to breakdown in joint venture
• Amount Claimed: £80,000,000
• Facility: £3,000,000
• Tranche Structure:
Tranche Amount Phase
Tranche 1 £1,300,000 Prepare and commence claim
Tranche 2 £700,000 Witness statements & expert reports
Tranche 3 £1,000,000 Prepare and conduct hearing

What makes Augusta different?
CONSTRUCTION
EXPERTISE
in-house industry experts that understand the complexities of construction
disputes.
TRACK RECORD 80% success rate on concluded claims.
PRICE LEADERSHIP enabling clients to keep a greater proportion of the damages
RESPONSIVE the largest litigation and dispute funding institution in the UK - our scale
enables us to make decisions in market-leading timeframes.
ALL CLAIM SIZES our structure allows us to fund cases of any size.
REGULATED a founding member of the Association of Litigation Funders, FCA and JFSC
regulated and Consumer credit compliant.
FINANCE COMMITTED CIRCA
£140 Million
CASES FINANCED
197
SUCCESS RATE
80%

Contact Details
LONDON
The Peak
5 Wilton Road
Victoria, SW1V 1AN
T: + 44 (0) 203 510 0555
SYDNEY
Suite 6, Level 1
55 Grosvenor Street
Neutral Bay NSW 2089
T: +61 2 8311 0555Contact
Andrew O’Connor
Investment Manager
Email: andrew.oconnor@augustaventures.com

2019
EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘CLOSE’
Sean Gibbs from UK Adjudicators

ADJUDICATOR
NOMINATING BODY
WWW.UKADJUDICATORS.CO.UK

UK Adjudication Survey 2019
Invitation to participate

UK Adjudication Survey 2019
▶ Research study from Addleshaw Goddard LLP and Glasgow Caledonian University
▶ Responses invited from members of the construction industry across the UK
▶ Looking at:
▶ Perceptions of adjudication in different parts of the UK
▶ Attitudes to adjudicator charging models
▶ The survey takes five minutes, please let us know what you think
▶ https://bit.ly/2VGM8vK

2019
EDINBURGH
ADJUDICATION
& ARBITRATION
CONFERENCE
‘CLOSE’
Brandon Malone

Anticipating ICCA 2020
• What is ICCA?
• What is the ICCA Congress?
• Why did we bid to host ICCA 2020 in Edinburgh?
• Why did ICCA select Edinburgh?
• What can we do to prepare for ICCA 2020 Edinburgh?
• How do we ensure a lasting legacy from hosting the congress?

What is ICCA?
• ICCA is the International Council for Commercial Arbitration
• ICCA is a worldwide nongovernmental organization (NGO) devoted to
promoting the use and improving the processes of arbitration,
conciliation and other forms of resolving international commercial
disputes
• It has official status as an NGO from the United Nations
• It is the apex body for commercial arbitration

What is ICCA?
• www.arbitration-icca.org
• President: Gabrielle Kaufman-Kohler, Levy Kaufman-Kohler
• Executive Director: Lise Boseman, based at the Peace Palace, The
Hague
• Projects
• Task forces: Damages in International Arbitration, Third Party Funding in
International Arbitration, Cybersecurity in International Arbitration
• Publications: Arbitration Yearbook, International Handbook on Commercial
Arbitration
• New York Convention Roadshow – training for judges (Coming to Scotland)
• ICCA Congress

What is the ICCA Congress?
• The largest international arbitration conference
• Takes place every two years
• High level debate on developments in arbitration
• A working conference
• Recent years:
• ICCA 2012 Singapore
• ICCA 2014 Miami
• ICCA 2016 Mauritius
• ICCA 2018 Sydney

Why did we bid to host ICCA 2020?
• Profile for Scotland
• To familiarise the international arbitration community with what
Scotland has to offer
• To showcase Scotland as a venue for and seat of international
arbitration
• To generate links between the international arbitration community
and Scottish practitioners

Why did ICCA select Edinburgh?
• We need ICCA
• Every previous host jurisdiction of the ICCA Congress has experienced a boost
in their international arbitration work
• One of ICCA’s criteria for selecting is to support emerging arbitral seats.
• Winning ICCA has put Scotland on the international arbitration map
(according to Global Arbitration Review)
• ICCA needs Scotland
• £150 billion economy
• £78 billion exports
• Very little international arbitration

What to expect from ICCA 2020
• The ICCA Congress has not been held in Europe since 2008
• We expect around 1,200 delegates
• The top international dispute resolution lawyers from around the
world
• A high quality programme
• Massive coverage in the international legal press

What can we do to prepare for 2020?
• Develop a strategy
• At the professional body level
• At the corporate level
• At the personal level
• Develop links with international bodies and practitioners
• ICCA, ICC, LCIA

A personal strategy
• Attend conferences
• Arbitrator accreditation: CIArb etc.
• Articles
• Submit papers to conferences (and ICCA 2020 in particular)
• Apply to international panels
• English/New York law?
• Attend ICCA 2020!

How do we ensure a lasting legacy?
• Convince international practitioners of the suitability of Scotland as a
seat of international arbitration
• Develop and maintain strong links with international arbitration
practitioners and institutions
• Increase the Scottish presence on the world arbitration stage

What do we stand to gain?
• Repatriation of dispute work generated in Scotland
• Wholly new international work
• International arbitration appointments for Scottish arbitrators
• Party representative appointments in international arbitration
• Arbitration application work in the Scottish Courts
• Increased recognition and prestige for the Scottish legal system, the
Scottish Courts and the Scottish profession

A vision for the future
• Regular use of Scotland as a seat of arbitration
• A strong body of Scottish arbitration experts
• Counsel and arbitrators
• Scottish arbitrators regularly appointed to international tribunals at
home and abroad
• Regular use of Scottish representatives and experts in international
arbitration
• Strong Scottish representation at international conferences
• As both speakers and delegates
• Regular international arbitration events in Scotland

Conclusion
• ICCA 2020 offers Scotland a unique opportunity to promote
• Scotland as a place to arbitrate
• The Scottish legal system
• Scottish arbitrators
• Scottish legal professionals
• We must all work together to maximise this opportunity and secure a
lasting benefit for Scotland

Brandon Malone
Chairman

2019 Edinburgh Adjudication & Arbitration Conference Slides

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