Lawyers and Arbitration: The Juridification of Construction Disputes

AuthorJohn Flood,Andrew Caiger
DOIhttp://doi.org/10.1111/j.1468-2230.1993.tb02681.x
Publication Date01 May 1993
7ke
Modern
Law
Review
[Vol.
56
Lawyers and Arbitration: The Juridification
of
Construction Disputes
John
Flood” and Andrew Caiger?
Introduction: Problems and Theory
Arbitration has for many years been the main form of dispute resolution in certain
fields of business activity, including construction, commodities and shipping. Why
has arbitration ‘been the dispute resolution system of choice?’ This question
concerns the dominance of the legal profession over fields of work including
lex
mercatoria.2
The issues of fields of work speak to the question of how legal
specialists attempt to monopolise fields through the process of j~ridification.~ The
issue of
lex mercatoria
raises questions that transcend the conventionalIy accepted
relationship of law and state and the cultural specificity of law.4 The three fields
of business activity mentioned above
-
construction, commodities and shipping
-
are key instances of the routines of
lex
mercatoria.
Their jurisprudence, although
solemnised from time to time in the courts, is mainly developed through the medium
of ‘lawyers’ law’, the routine, everyday processes worked out in negotiations,
contracts and non-judicial forums.’ These take place both within domestic and
international transactions. We have, then, a situation that is best described as one
of
nomtive pluralism.
Arbitration is not a practice uniform across all fields. In this article we concentrate
on one field
of
juridical activity, namely, construction. We chose this field because
of the volume and value of disputes; they are significant both nationally and inter-
nationally. And virtually all construction contracts contain arbitration clauses.6 Our
*University of Westminster, tAnglia Polytechnic University. The research and fieldwork were conducted
by Flood and Caiger, and the final drafts were written by Flood.
We are grateful to Eleni Skordaki, Simon Roberts, Sebastian Payne and Simon Loveday for their helpful
comments on earlier drafts. Yasmin James, law student, gave us valuable research assistance. Finally,
we would also like to thank the lawyers and arbitrators who generously gave
us
their views and time.
1
A further question we can put here is: Are we observing a struggle between the spheres of private
and public governance, with arbitration leading in the private camp and the courts leading in the public?
See
S.
Macaulay, ‘Private Government’ (1983) Working Paper DPRP 1983-86, Institute for Legal
Studies.
2 See M. Mustill, ‘The New
Lex
Mercatoria:
The First Twenty-Five Years’ (1988) 4 Arbitration
International 86; A. Lowenfeld,
‘Lex
Mercatoria:
An Arbitrator’s View’ (1990) 6 Arbitration
International 133; and W. Craig, W. Park and
J.
Paulsson,
Infernational Chamber
of
Commerce
Arbitration
(2nd ed, 1990). See also Lando, ‘the binding force of the
Iex
mercatoria
does
not
depend
on
the fact that it is made and promulgated by State authorities but that it is recognised as an autonomous
norm system by the business community and by State authorities’:
0.
Lando, ‘The
Lex
Mercatoria
in International Commercial Arbitration’ (1985) 34 International and Comparative Law Quarterly 747.
3
P.
Bourdieu, ‘The Force of Law: Toward a Sociology
of
the Juridical Field’ (1987)
38
Hastings
LJ
814.
4 See
G.
Teubner, ‘Global Bukowina: The Politics of
Lex
Mercatoria,’
unpublished paper. See also
J.
Flood, ‘Conquering the World: Multinational Legal Practice and the Production
of
Law’ in
E.
Skordaki (ed),
Social Change and the Solicitors’ Profession
(1993); and
J.
Flood, ‘The Cultures of
Globalization: Professional Restructuring for the International Market’ in D. Sugarman and Y. Dezalay
(eds),
Professional Competition and the Social Construction
of
Markets
(1993).
5
cf
S.
Macaulay, ‘An Empirical View of Contract’ (1985) Wisconsin
L
Rev 465. See also
J.
Flood,
‘Doing Business: The Management of Uncertainty in Lawyers’ Work’ (1991) 25 Law
&
Society Rev
41.
6 For example, the Channel tunnel construction project is governed by a contract that provides in the
0
The Modern Law Review Limited 1993 (MLR 56:3, May). Published by Blackwell
Publishers, 108 Cowley Road, Oxford OX4 IJF and 238 Main Street, Cambridge,
412
MA 02142, USA.
May
19931
Lawyers and Arbitration: i%e Juridijication
of
Construction Disputes
research is focussed upon the
perceptions
of the actors in the system.
As
much as
possible we let their voices speak for them.’ the research was conducted primarily
through interviewing practitioners in the field, ie, lawyers, civil engineers, quantity
surveyors, arbitrators, architects, and advisers and presidents of institutions involved,
and through them we attempted to map the world of construction arbitration.8 We
wanted to know how they made sense of the division of labour within their field;
and how they made sense of each others’ approaches to their work and its structure.
The literature of the industry suggested that a struggle was in process between
lawyers and non-lawyers over who should control the arbitral procedure. We know
from other studies that occupations and professions are most insecure at their margins
and this is the location of turf wars.9 Moreover, there is a second struggle taking
place, that between lawyers in construction and those in more mainstream fields
of law.
As
we show below, construction lawyers are trying to raise their symbolic
capital in the face of action that diminishes their status. Yet they operate as legal
luminaries in fields that have actively distanced themselves from the centre: their
career trajectories diverge from the normal. The two struggles intersect and reinforce
each other.
No
other field of legal activity is
so
infused with non-lawyer adjudication
as is the construction field. The non-lawyer members are reasonably secure in their
practice: their central claim to signficance is by virtue of being primarily architects,
quantity surveyors or engineers, while the role of arbitrator fundamentally derives
from the first. For lawyers, the legal process is their whole concern. The non-lawyers
are actively engaged as business people in the field, whereas lawyers are at best
ancillary to that activity.’O Therefore, to be pushed to the edge undercuts the basis
of their authority,
so
in fields engaging both lawyers and non-lawyers and where
control does not necessarily reside solely in the lawyers’ hands, the lawyers will
seek to juridify the field and dominate it.
The juridification thesis has been addressed by, among others, Pierre Bourdieu
who argues that any social field is organised in deeply patterned ways. Within these
orientations towards practice and practices is a struggle among actors, which can
clearly be seen in the field of construction law. Bourdieu states, ‘The juridical field
is the site
of
a competition for monopoly of the right to determine the law. Within
this
field there occurs a confrontation among actors possessing a technical competence
which is inevitably social and which consists essentially in the socially recognised
capacity to interpret a corpus of texts sanctifying a correct or legitimised vision
of the social world.’”
The actors in this field are broadly lawyers and non-lawyers, with the latter
routinely being the arbitrators. For
UK
domestic arbitrations we have the construction
industry’s institutional appointments of arbitrators, which for 1991 were as follows
first instance that disputes be heard by a specially convened Disputes Panel of five experts chaired
by a law professor. If either the contractors, TML,
or
the employers, Eurotunnel, are dissatisfied
with the results,
then
the party can take the dispute
to
arbitration in Brussels under the rules of the
International Chamber of Commerce:
Eurotunnel Annual
Report
1991,
p
4.
7 cf
J.
Clifford and
G.
Marcus (eds),
Wifing
Culture:
The
Poetics and Politics
of
Ethnography
(1986).
See also C. Klockars,
The
Professional
Fence
(1974).
8
The institutions were the Chartered Institute of Arbitrators, the Royal Institution
of
Chartered Surveyors,
the Royal Institute of British Architects and the International Chamber of Commerce. Where there
are unattributed quotations in the text, these are drawn from
our
interview material.
9
A. Abbott,
The
System
of
Professions
(1988).
10
cf
R.
Gilson, ‘Value Creation by Business Lawyers: Legal Skills and Asset Pricing’ (1984) 94 Yale
LI
239.
11
Bourdieu,
op
cif
n 3,
p
817.
0
The Modem Law Review Limited
1993
413

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