International Construction Law Review
DUAL TRACK PROCEEDINGS IN ARBITRATION AND LITIGATION: REDUCING THE PERIL OF “DOUBLE JEOPARDY” BY CONSOLIDATION, JOINDER AND APPELLATE ARBITRATION
Philip L Bruner FCIArb, Chartered Arbitrator*
I. INTRODUCTION
Those who engage in the fields of engineering and constrution universally acknowledge this fundamental truth: “major construction projects generate major litigation” and “the management of either is perilous”1. To manage the perilous impacts upon construction projects of such “major litigation” between and among parties engaged in the construction process, the construction industry for centuries has followed the practice of merchants of resolving disputes by consensual binding arbitration rather than by courtroom litigation2. Arbitration was regarded as more efficient and cost-effective than litigation because awards settling the disputes could be rendered promptly by neutral arbitrators selected by the parties for their expertise in construction law, knowledge of specialised industry customs and practices, and lack of local prejudices and biases.
Arbitration between two contracting parties has worked well in resolving their disputes over the centuries. But construction’s modern complexity has led to significant expansion in both the number of specialised parties involved in projects, the number and complexity of construction disputes,
* Member of the Editorial Advisory Board of the ICLR. Director of JAMS Global Engineering and Construction Panel of Neutrals (www.jamsadr.com); Arbitrator and Mediator of complex construction and energy disputes. Co-author with Patrick J O’Connor Jr, of Bruner and O’Connor on Construction Law (2002, supplemented annually).
1 Morse/Diesel Inc v Trinity Indus Inc 67 F 3d 435, 437 (2d Cir 1995).
2 See e.g., Gerard Malynes, Consuetudo, Vel Lex Mercatoria, or The Ancient Law-Merchant 447 (1622), a treatise on England’s Law Merchant written in 1622 by a London merchant for the benefit of “all judges, lawyers, merchants and all others negotiate in all parts of the world”, and confirming that ADR method ordinarily employed to resolve disputes between merchants was binding arbitration:
“[The] ordinary course to end the questions and controversies arising between merchants is by way of Arbitrement, when both parties do make choice of honest men to end their causes, which is voluntary and in their own power, and therefore is called Arbitrium or of free will, whence the name Arbitrator is derived: and these men (by some called Good men) give their judgments by awards, according to Equity and Conscience, observing the Custom of Merchants, and ought to be void of all partiality of affection more nor less to the one than to the other: having only care that right may take place according to the truth, and that the difference may be ended with brevity and expedition; insomuch that he may not be called an arbitrator who (to please his friend) makes delays and propagates their differences, but he is rather a disturber and an enemy to justice and truth.”
The International Construction Law Review [2014
538