Let’s Get Together: Quo Vadis International Construction Arbitration? Presented by Professor Doug Jones AO www.dougjones.info
Overview The Challenge: timely intervention to increase efficiency COVID-19 impact going forward Some techniques for the future 2
The Challenge The Challenge: meeting the parties’ commercial interests by resolving disputes fairly and efficiently A central tenet of success: recognising the importance of time to effective dispute resolution 3 The Challenge Impact of COVID-19 Best Practice
The Challenge The Challenge: meeting the parties’ commercial interests by resolving disputes fairly and efficiently A central tenet of success: recognising the importance of time to effective dispute resolution 4 The Challenge Impact of COVID-19 Best Practice
COVID-19 impact Three areas of innovation promoting efficiency Arbitral Service Arbitrators and Institutions & Providers Parties Hearing Centres Advances in MC, HKIAC, IDRC, Virtual hearing videoconferencing IAC, AP working rooms in home services with providers offices Specialist services ICC, SIAC, HKIAC, Developing hearing COVID-19 protocols directives 5 The Challenge Impact of COVID-19 Best Practice
Virtual hearings going forward The Future • Virtual hearings offer cost- effective alternatives to 2020 physical hearings • Arbitrators and • Hybrid hearings increase practitioners have embraced virtual • CMCs by videoconference hearings becoming routine 2018 • Technology has • Virtual hearing platforms improved • Just 8% of arbitrators continue to innovate in QMUL 2018 survey • Upfront costs of a home said they 'always' or office setup have been 'frequently' used virtual incurred hearing rooms 6 The Challenge Impact of COVID-19 Best Practice
Some techniques for the future 1. Case management 2. Document production 3. Expert evidence 4. Bespoke summary procedures 5. Costs 7 The Challenge Impact of COVID-19 Best Practice
1. Case management best practice A balance must However, it is be struck to PO1 is optimal often used to promote flexibility time for fixing make decisions whilst providing many aspects of on issues that safeguards to the procedure have not yet prevent the crystallised arbitration from stalling 8 The Challenge Impact of COVID-19 Best Practice
1. Case management best practice A balance must However, it is be struck to PO1 is optimal often used to promote flexibility time for fixing make decisions whilst providing many aspects of on issues that safeguards to the procedure have not yet prevent the crystallised arbitration from stalling 9 The Challenge Impact of COVID-19 Best Practice
1. Case management best practice A balance must However, it is be struck to PO1 is optimal often used to promote flexibility time for fixing make decisions whilst providing many aspects of on issues that safeguards to the procedure have not yet prevent the crystallised arbitration from stalling 10 The Challenge Impact of COVID-19 Best Practice
2. Document production best practice Voluminous Best Practice Requests Ensuring the issues Technical evidence Temporal are crystallised Adversarial Difficulties objections Early requests Prior to ventilation of issues 11 The Challenge Impact of COVID-19 Best Practice
3. Expert evidence best practice Defer production of Establish common reports until factual Identify disciplines list of questions evidence is available Produce joint Produce individual Produce "reply" reports identifying expert reports on reports with areas of agreement areas of "figures-as-figures" and disagreement disagreement only analysis 12 The Challenge Impact of COVID-19 Best Practice
4. Bespoke summary procedures Deciding matters on the papers Proportional determination of small claims Categorising claims and associated sampling techniques 13 The Challenge Impact of COVID-19 Best Practice
5. Costs The efficiency of Cost orders may be proceedings depends used to discourage on efficiency of the conduct that is: parties In the QMUL Survey 2019, 46% supported Unreasonable In bad faith the use of costs to encourage efficiency 14 The Challenge Impact of COVID-19 Best Practice
Conclusion Informed collaboration Efficiency Best Practice 15 The Challenge Impact of COVID-19 Best Practice
Professor Doug Jones AO www.dougjones.info
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