The Tribunal in the Driving Seat: Inquisitorial procedures in adjudication and arbitration

Peter Aeberli

December 2005

A paper given to the Society of Construction Law in London on 7th September 2004 and in Oxford on 16th June 2005.

What procedural innovations can an adjudicator employ to improve the process of determining UK construction adjudications for the parties within the very tight statutory timescales?Peter Aeberli explains a range of initiatives open to a proactive adjudicator and consistent with the procedural basics which the courts insist on; he then argues that the same techniques could be used (with appropriate safeguards) to advantage within arbitrations as well.

Introduction - Case presentation and decision-making in adjudication - The passive adjudicator - The proactive adjudicator - Preparing a List of Issues - The layout of a List of Issues - Conducting the adjudication after the List of Issues -Procedure on documents only - Procedure if there is to be a meeting - equests for further information - The meeting - Advantages and disadvantages of the List of Issues approach - Can similar procedures be used in arbitral proceedings? - Truncating the pre-hearings stages - Narrowing issues and truncating the hearing - Form and content of a List of Issues in arbitral proceedings - Conduct of the arbitration where a List of Issues is directed - The changed role of the parties' representatives - Are inquisitorial procedures compatible with the adversarial principle? - Conclusions.

The author: Peter Aeberli IBA, AIAS, ACE, FCIArb is a barrister, chartered arbitrator, adjudicator and registered CED mediator; he is also Visiting Senior Lecturer at the Centre of Construction Law & Management, King's College London.

Text: 23 pages

PDF file size: 146k