Regrettably this sort of situation is not an isolated occurrence. In another non administered arbitration, there was a thirteen month delay between the conclusion of the Hearing and the issue of a Partial Award which, although eagerly anticipated proved somewhat of a disappointment since it merely ordered the appointment of a Tribunal Expert to deal with all the difficult issues which had in any event been before the tribunal at the original hearing. As a consequence the Tribunal Expert effectively had to replicate a substantial part of the original evidential hearing, leading to further delay and increased cost.

The reason behind both of the above examples was essentially arbitrator unavailability. It was therefore with a gladdening heart that I read the recent ICC press release on the issue of their new Statement of Acceptance Availability Independence for ICC Arbitrators. This now requires prospective arbitrators not only to sign a statement of independence but also a statement confirming that they “can devote the time necessary to conduct this arbitration diligently, efficiently and in accordance with the time limits in the rules”. The statement reminds prospective arbitrators that the conduct of the arbitration and its duration will be taken into account when fixing the arbitrators fees. Thus the ICC can now impose financial penalties upon recalcitrant arbitrators and, as a last resort, can require the removal of such arbitrators.

Whilst the statement of the ICC and its sanctions are to be welcomed, it remains the case that it is the long suffering client who has to foot the bill for an extended hearing or, worse still, the delay and disruption caused by the removal of an arbitrator. However one must not cavil unreasonably since the ICC are clearly endeavouring to cure a particular ill and they have armed themselves accordingly. My musings then took a different turn to wonder to what extent parties give consideration to the legal relationship which they establish when they incorporate into their contract a clause which names an Arbitral Institution as the body which will appoint their tribunal in default of agreement and oversee and manage the dispute resolution process. In my experience it is rare for parties even to get remotely exercised in the content of the arbitration clause generally let alone to devote time considering the somewhat esoteric concept of the legal relationship which they are entering into with the appointing body. This is unfortunate and such issues should be addressed before contract signature.

If the relationship is one of contract, what are its terms and what are the obligations on each party? More importantly what are the immunities which the Institution may enjoy by law? Under English law, such immunities are limited and reflect, broadly, insofar as the appointment process is concerned, the type of immunity enjoyed by arbitrators themselves. But query what if there is a failure by an Institution, such as the ICC, properly to police the conduct of the arbitration or indeed to avail itself of the sanctions with which it has expressly equipped itself to overcome delay. Loss will be suffered by the parties, is the Institution’s failure actionable by the parties to recover that loss? If so, what would be the extent of any immunity from suit?

The answers to these questions may be found in the rules of the Institutions concerned but the essential point which I want to emphasis is that parties and their advisors should at least ask themselves certain questions before they simply incorporate a clause which grants to an Institution a hugely significant role in the processing and resolution of disputes. A properly considered and drafted dispute resolution clause in a contract will always pay dividends. It will be a disincentive to the party who wishes to embark upon proceedings simply to delay a matter or to achieve another non project specific strategic objective. Equally a poorly drafted dispute resolution cause and a failure properly to have regard to the role of the Institution whose function is of such critical importance, could lead to parties waiting ten years or more for their disputes to be resolved. The choice is that of the client and its advisors. I urge parties and their lawyers to give these matters careful attention at the contract preparation stage and I would counsel caution before surrendering control over the dispute resolution process by simply cutting and pasting into your contract, a standard institutional clause.

Over the last 10 days I spent some 23 hours travelling by road, at an average speed of less than 30 kilometers per hour and some 11 hours travelling by train. These journeys captured for me, with great clarity, the size and nature of the challenge facing those who are to deliver the Indian infrastructure vision which is central to the ability of India to assume its much heralded position as a world economic superpower. It is clear to me that its successful delivery will require a radical re evaluation of how such massive projects are procured and managed and that got me thinking about the role of lawyers in that process. Will we be in the vanguard of change or will we provide passive opposition in the search for the retention of that which is familiar?

The infrastructure packages which many of the governments of the World have announced as part of their fiscal stimuli measures to beat the recession, provide lawyers with an almost once in a lifetime opportunity to demonstrate their ability to be facilitators of change. We have the potential to play a major role from the very inception of these projects and a strong guiding hand through to their successful conclusion. With vision and innovation, uncluttered by familiar environments with which we are comfortable, lawyers can be a major force in guiding countries such as India to achieve their development visions. Equally, however, lawyers have the ability to frustrate, obscure and delay those visions. Which route will be followed? It is our choice.

A major element of any infrastructure challenge is risk, its inherent unpredictability and its potential to cause huge disruption. If lawyers approach their contract drafting in the traditional manner of seeking to pass risk away from their client rather than identifying the risk, carefully evaluating it and then sharing it with those who may best be able to manage it, problems will be caused. There will need to be a bold move away by lawyers from their comfort zone, to give clients guidance, as opposed to advice which the lawyers think their clients might want to hear.

It would be unrealistic to suppose that however well run these contracts are and however well drafted their terms may be, no disputes will arise. Disputes are almost inevitable and if lawyers remain in their comfort zone of arbitration or litigation, then such disputes will become entrenched and will threaten projects with delays, suspensions and increased costs and will undermine the entire infrastructure programme and the very realisation of the country’s vision.

Efforts should therefore be made to identify innovative forms of dispute resolution, perhaps borrowing and adapting for the domestic market, the UK experience of adjudication. Perfect it may not be, but its ability to provide a form of justice sufficient to allow projects to continue, to remove the poison of disputes which would otherwise continue to fester until project end and also to provide a voice for the party who feels aggrieved, cannot be over estimated. Lawyers should influence and guide their clients to adapt dispute resolution procedures which are fit for purpose and not seek to find refuge in what is comfortable and familiar. Moreover, lawyers must at all costs avoid grudging acceptance of any light, flexible dispute resolution procedures only to frustrate the main objective by cloaking the process with the familiar heavy and inflexible trappings of arbitration and litigation, with which they are comfortable.

We lawyers have the ability to play a major formative role in facilitating the effective, economic and timely delivery of major infrastructure projects and thus provide the much needed anti-recessionary stimulus. To do this we need to be at the very centre of the procurement strategy and the dispute resolution with an approach which is bold and combines innovation with simplicity and vision with authority. Otherwise my fear is that when I next take my family on a visit to India in a few years time I will be continuing to drive at 30 kilometres an hour along the major trunk roads and the people of India will have been denied the benefits which they could be enjoying. We have the opportunity to make a positive difference, let us embrace it.