The Intersection of International Arbitration and Construction Disputes: A Review of the 2019 Queen Mary University of London International Arbitration Survey

• Author: By Albert Bates Jr. and R. Zachary Torres-Fowler
• Pages: 20-30

THE CONSTRUCTION LAWYER20 Spring 2020

Albert Bates Jr. R. Zachary Torres-Fowlers

Published in The Construction Lawyer, Volume 40, Number 2, Spring 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Intersection of International Arbitration and

Construction Disputes: A Review of the 2019

Queen Mary University of London International

Arbitration Survey

By Albert Bates Jr. and R. Zachary Torres-Fowler

INTERNATIONAL SURVEY

Albert Bates Jr. is a partner in the Construction Practice

Group of Pepper Hamilton LLP, resident in the Pittsburgh

ofce. R. Zachary Torres-Fowler is an associate in the

Construction Practice Group of Pepper Hamilton LLP,

resident in the Philadelphia and New York ofces.

Over the past decade, the annual Queen Mary University

of London International Arbitration Survey (QMUL Sur-

vey) has become an invaluable resource for practitioners

and academics in the eld of international arbitration.

Because international arbitrations are almost always con-

dential, surveys like the QMUL Survey pull back the

curtain and offer insight into a eld that is commonly

misunderstood. Most recently, in November 2019, the

Queen Mary University of London School of Interna-

tional Arbitration, in partnership with the U.K.-based

law rm Pinsent Masons LLP, released its ninth annual

international arbitration survey (2019 QMUL Survey),

titled Driving Efciency in International Construction Dis-

putes—How Can International Construction Disputes Be

Resolved More Efciently Whilst Maintaining Fairness and

Access to Justice?”1 As the title indicates, the 2019 QMUL

Survey holds particular signicance for the construction

sector (and therefore the readers of The Construction

Lawyer) because this year’s edition focused exclusively on

the eld of international construction disputes. As a nod

to the signicance the construction industry plays in the

eld of international arbitration, the 2019 QMUL Survey

marks the largest industry-specic survey the Queen Mary

University of London School of International Arbitra-

tion has ever conducted.2

Given the 2019 QMUL Survey’s importance to both

the international arbitration community and the con-

struction industry, the authors intend to introduce this

very important resource to a U.S.-based audience. This

article does not, however, seek to repackage the analysis

provided in the survey’s accompanying report authored

by the Queen Mary University of London School of

International Arbitration and Pinsent Masons (the SUR-

VEY REPORT). Instead, the authors plan to highlight and

contextualize the most signicant features of the survey

results—especially those that a U.S.-based audience will

nd the most interesting.

As explained below, the 2019 QMUL Survey conrms

that international construction arbitration is a unique

discipline that straddles the international arbitration

and construction dispute elds.

3

In fact, among the sur-

vey’s key ndings is that respondents place high value

on counsel and arbitrators with signicant experience in

international arbitration and the construction disputes

sector.4 Some of the other most interesting results are

listed below.

•

International arbitration was the most common

dispute-resolution process for international con-

struction disputes among respondents. However,

the results also indicated that international arbitra-

tion was viewed as an economically viable dispute

resolution method only for disputes above a cer-

tain threshold amount.5 Because respondents also

gave mixed reviews for other pre-arbitration/litiga-

tion alternative dispute resolution methods (such as

mediation or dispute boards), the survey suggests

that the international construction disputes sector

lacks a reliable/effective method for resolving low-

value construction disputes.6

•

While respondents identied substantive experi-

ence in both construction disputes and international

arbitration as critical criteria in arbitrator selec-

tion, respondents raised concerns over arbitrators’

ability to manage construction arbitrations ef-

ciently and expressed a strong desire that arbitrators