Robert was recently interviewed by eSolver for their monthly member’s interview and the following article was first published by them in the April edition.
CIARB MONTHLY MEMBER’S INTERVIEW
Based at SWL Chambers in London, Robert Sliwinski FCIArb is a Chartered Quantity Surveyor, Chartered Arbitrator and Barrister. He is also the Chairman of CIArb’s Thames Valley Branch and counted amongst the leading arbitrators and adjudicators in the UK. In an interview with the Institute, Robert discusses his route to membership, changes within the adjudication arena and the pinnacle moment of his career.
1) You have over 30 years’ experience in the construction industry, what do you enjoy most about working as an adjudicator in this field?
I have acted as an adjudicator for the past 15 years and have borne witness to and been involved in the development of adjudication within the construction field. Adjudication started out as a rough and ready process where the adjudicator could roll up his sleeves and delve into the matter before him, asking questions of anyone he thought might be helpful in resolving the dispute as well as obtaining information from multiple sources to assist with the case.
Adjudication has now evolved into a swift forensic investigation based on the submissions of both parties and occasionally requiring a high degree of legal acumen. This is especially so where as a practicing barrister and chartered quantity surveyor, I tend to be nominated in the more complex disputes involving legal/contractual issues. It is the interaction between the construction/surveying issues, alongside the requirements and obligations of the parties under the contract and at law, which keeps my attention and interest constantly engaged.
The intellectual challenge along with the practical aspects of reaching a decision within a very short space of time creates a working environment that keeps me on my toes. Although not for everyone, this is what I enjoy most about acting as an adjudicator in this ever changing high pressure arena.
2) Did you always plan to specialise as an adjudicator and an arbitrator?
Like many young people, I left school with no clear idea of what the future would hold. Having studied elementary surveying at ‘O’ level, my teacher Bernard Reynolds was bored with technical drawing and having trained as an aero engineer wanted something more exciting to teach his charges, I decided to give quantity surveying a go. I quickly learnt that this did not involve throwing chains around or peering through theodolites. The need to thoroughly understand construction in order to measure and value works caught my attention.
Naturally this wasn’t enough and having become a Chartered Quantity Surveyor I was becoming more interested in how the contract could be used as a sword or a shield depending upon your position and needs. I had begun assessing contractor’s claims taking more notice of the case law which had to be applied to any given problem. From here I decided that in order to progress, I needed a legal qualification. This then led to my studying and qualifying at the Bar whilst continuing to work as a surveyor concentrating on construction and engineering disputes.
Since becoming a barrister in 1990, I have worked representing clients in arbitration and litigation, and following the advent of adjudication after 1996, it was a natural step for me to become an adjudicator. It was also at this time that I became involved with the Chartered Institute as I recognised that becoming a member and eventually a Chartered Arbitrator, would demonstrate my commitment to ADR and help my evolving career as a dispute resolver.
3) Tell us about your route to membership
I joined the Chartered Institute as an Associate Member in 1994 attending and completing the required courses through to Fellowship which I obtained in 2001. The next step to Chartered Arbitrator took until 2008 mainly due to the low level of arbitrations in the UK at that time. Indeed adjudication had proved so popular that most of my time was spent representing parties and acting as an adjudicator. I do recall attending a Fellowship weekend where we were being assessed as to our suitability to attain Fellowship status, which worked very well allowing the attendees to mix with and learn from our very experienced assessors. I must have had the bit between my teeth because during this period I also studied for and qualified as an Attorney at the New York Bar.
4) What change would you like to see happen in the adjudication arena?
Adjudication has become overly legalistic and this can be seen by the constant level of ever more refined legal argument within the courts as the parties battle to enforce or avoid enforcement of an adjudicator’s decision. It does appear to me that we have moved away from the short sharp process originally envisaged to deal with the cash flow difficulties that continue to afflict the construction industry.
Whilst I am an advocate of adjudication being used for all and any disputes within construction and engineering, I am concerned that we appear to be running some form of shortened litigation/arbitration with teams of lawyers, experts, etc on both sides who always want to have the last word.
Much time is now spent on dealing with jurisdiction challenges which takes the focus away from the dispute itself. Inevitably parties wish their disputes to be resolved quickly and efficiently whilst trying to preserve their on-going commercial relationships. With the ever increasing legalistic approach it is becoming ever more difficult to attain these goals. It would be beneficial for adjudicators to really be given the ability to investigate the disputes presented to them and to be allowed to set an appropriate timetable for the particular dispute- whilst of course being mindful that where possible, the prevailing strict adjudication period should be maintained.
5) Time and cost concerns are always points of debate when it comes to arbitration. How can we improve the status quo?
Arbitration suffers from a perception that it is time consuming and expensive. This does not have to be the case but does involve the parties and their representatives consciously agreeing with the tribunal to streamline the process and to avoid unnecessarily protracted preliminary steps which in reality do not assist in resolving the actual dispute between them.
I believe that the current arbitration rules both in the UK and internationally can be used to ensure both a timely and cost effective process. However this is very much in the parties’ hands and arbitrators should at the outset, try to obtain agreement as to the powers that they are given, to help implement a suitable process that will allow both parties to fully put their case within an efficient time frame.
6) What was your toughest dispute?
Are there any disputes which aren’t tough in some way? Some my toughest include those where I have been instructed as counsel at the last moment and am presented with vast quantities of paperwork to assimilate in a very short time.
However more specifically I recall a case some years ago where as an inexperienced counsel I was drafted in to attend an application before the arbitrator as leading counsel had become unavailable. The application involved complex legal issues which I had to absorb on my train journey up to Manchester knowing that opposing counsel was a well-known QC who had been involved in the matter throughout. Fortunately for me the arbitrator was not overawed by my opponent and correctly decided the application in my client’s favour.
As an arbitrator the toughest dispute that I have had to deal with involved parties based in one part of the Americas with attorneys in another part of the Americas which caused serious difficulties in communications and in keeping to the agreed timetable. There appeared to be very different ideas as to how the arbitration should be run resulting in lengthy delays which the tribunal inevitably only found out about when trying to ascertain that the agreed steps had or were being taken. Frustratingly as both parties were happy to ignore the timetable, they would agree a new timetable by consent and simply present this to the tribunal.
Whilst it is a matter for the parties, the tribunal is under a duty to ensure that matters progress efficiently and cost effectively which resulted in my constant efforts of persuasion to move the matter along. Whilst as an adjudicator with over 300 decisions to my name the toughest did not involve the process as the timetable was governed by the Rules and parties tend to wish for a decision to be made sooner rather than later.
In adjudication the tough disputes come about from the complexities of the dispute itself and the need to make a decision within a very short time frame.
7) What, in your eyes, has been the pinnacle moment of your career thus far?
Having come from a moderate background it is my success in having achieved the highest professional qualifications including Chartered Arbitrator that gives me great satisfaction and then using those qualifications to succeed and be respected within the world of ADR.
It also gives me great pleasure to teach and assess, through the lnstitute’s training programmes, up and coming students and practitioners within ADR and to see their subsequent success in the field.