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INTERNATIONAL CONSTRUCTION ARBITRATION: A NEED FOR DECODING THE BLACK BOX OF DECISION MAKING

International Construction Law Review

INTERNATIONAL CONSTRUCTION ARBITRATION: A NEED FOR DECODING THE BLACK BOX OF DECISION MAKING

Haytham Besaiso

(PhD Candidate, School of Mechanical, Aerospace, and Civil Engineering, University of Manchester. haytham.besaiso@manchester.ac.uk)

Peter Fenn

(Reader, School of Mechanical, Aerospace, and Civil Engineering, University of Manchester. peter.fenn@manchester.ac.uk)

Margaret Emsley

(Reader, School of Mechanical, Aerospace, and Civil Engineering, University of Manchester. margaret.emsley@manchester.ac.uk)

ABSTRACT

This review paper is the first synthesis of both theoretical literature and empirical research related to construction arbitration decision making. It reveals a lack of theoretical consensus on the underlying ideology that should guide arbitrators in rendering awards. It demonstrates that the available thin empirical research provides mixed evidence. While there is a reason to tentatively believe that there is a growing trend to follow the “legal model” in rendering arbitral awards, the results of the existing studies are far from conclusive and much more remains to be done. Therefore, this paper argues that there is a pressing need for further empirical research to unlock the black-box of arbitral decision making. To do so, this paper calls scholars to steer away from the positivistic paradigm and move closer to the grassroots level by endorsing more interpretivist qualitative research.
Keywords: International construction arbitration – Decision making – Legal reasoning – Commercial reasoning.
Pt 3] International Construction Arbitration

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