Report: Ciarb Australia Annual Lecture 2025: “Diversity of Expertise in Arbitration: The Past, Present and Future”
Presented by Professor Doug Jones AO
Report by William Hettrick, ACIArb, Lawyer, Projects (Construction), Clayton Utz
(Originally published in the ACICA AAW Blog, accessed here; republished with permission)
Held as part of Australian Arbitration Week 2025, on 14 October.
Hosted by Holding Redlich, Sydney.
Introduction
At the 2025 Ciarb Australia Annual Lecture, Professor Doug Jones AO called for a renewed focus on a long-neglected form of diversity in arbitration; diversity of expertise. His lecture, “Diversity of Expertise in Arbitration: The Past, Present and Future”* traced the profession’s evolution from its technically grounded origins to its current lawyer-dominated model, and posed a challenge to the arbitral community: to reclaim what has been lost by being more open to appointing non-lawyer arbitrators with relevant subject-matter expertise.
The Past
Professor Jones began by revisiting a time when arbitration in Australia and beyond was firmly grounded in industry knowledge. Reflecting on his early career, he recalled prominent arbitrators who were not lawyers at all; engineers, architects and quantity surveyors, who brought deep technical understanding and practical judgment to disputes. They were trusted to resolve complex matters efficiently and cost-effectively, not only by lawyers, but also by their professional peers.
Historically, this was no anomaly. From the merchant fairs of medieval Europe to the industrial disputes of the 18th and 19th centuries, arbitration was a mechanism of the marketplace; an avenue for those within trades to resolve disputes among themselves. As Professor Jones observed, it was not until the industrial revolution that lawyers began to dominate arbitral practice. In doing so, something essential was lost: the grounding of decision-making in genuine subject-matter expertise.
The Present
Today, despite arbitration’s reputation for flexibility and industry relevance, the field has drifted far from its multidisciplinary roots. Professor Jones noted that clauses requiring an arbitrator with “ten years’ experience in construction” are now almost invariably satisfied by appointing a lawyer who practises or has practised in construction law for that period of time; not an engineer or builder who has lived experience of the issues in question.
There are some notable exceptions. In maritime arbitrations, the London Maritime Arbitrators Association (LMAA) continues to count a large proportion of non-lawyers among its senior members. The Grain and Feed Trade Association (GAFTA) likewise ensures that its tribunals include trade professionals, and even restricts legal representation unless both parties consent. Sports arbitrations (under the Court of Arbitration for Sport or “CAS”, for example) also routinely retain and rely on the use of subject-matter experts.
By contrast, commercial arbitration has become increasingly homogeneous. Professor Jones postulated three reasons why:
- Predictability: parties and counsel often perceive non-lawyer arbitrators as ill-equipped to handle procedural complexity or ensure due process;
- Finality: the limited avenues for appeal in arbitration make parties reluctant to “take a risk” on a non-lawyer; and
- Conservatism: the legal profession’s habitual preference for appointing “one of their own.”
The result? A self-perpetuating cycle in which non-lawyers rarely receive appointments, and thus cannot build the experience that would otherwise give parties confidence to appoint them.
The risks of this narrowing are not merely theoretical. Professor Jones pointed to the Nigeria v P&ID case, in which the English High Court set aside a multi-billion-dollar award tainted by corruption. A tribunal with deeper industry insight, he argued, might have recognised earlier that the underlying contract bore the hallmarks of a sham, illustrating how the absence of relevant expertise in a tribunal risks eroding the legitimacy of arbitration.
The Future
Professor Jones’ central message was forward-looking; the arbitration community should strive to restore the diversity of expertise that once underpinned good (or perhaps better) decision-making. Drawing on the reflections of Professor Janet Walker CM on “collective intelligence” during the 2025 Clayton Utz & University of Sydney International Arbitration Lecture, he highlighted how diversity within tribunals (including diversity of professional background) enhances deliberation and improves the quality and robustness of awards.
Two examples from his own experience underscored this point. In a hydroelectric dispute regarding turbine performance, involving arguments about whether there was more than acceptable vibration in the turbines, an engineer was on the tribunal and proved pivotal to the tribunal’s reasoning. In an oil-concession accounting dispute involving the reconstruction of hundreds of entries in the accounting records of the concessionaire and the country involved over a 10yr period, a quantity surveyor’s numerical expertise on the tribunal was indispensable. These cases demonstrate that tribunals with at least some relevant subject-matter expertise can achieve not only fairer but also more informed outcomes.
What, then, can be done? Professor Jones acknowledged that party autonomy, a cornerstone of arbitration, has contributed to the problem, since parties (or rather their lawyers) tend to choose arbitrators they know. He suggested that arbitral institutions could play a critical role by taking a more active role in appointments, such as by following sports arbitration institutions where panels are selected for their suitability rather than familiarity.
Ciarb, in particular, is well placed to lead this change. As a global accrediting body, rather than a commercial provider, it can promote pathways for non-lawyers to develop procedural competence and gain recognition as qualified arbitrators. Construction adjudication, in which non-lawyer adjudicators are already commonplace, offers a model for how technical professionals can build adjudicative experience and credibility.
Ultimately, the presumption that only lawyers possess the skills necessary to arbitrate effectively is a professional conceit; one that diminishes both the efficiency and legitimacy of the arbitral process. True diversity, he concluded, must extend beyond gender, geography and background to include diversity of expertise.
If arbitration is to maintain its legitimacy as an independent and effective form of dispute resolution, it must rediscover the value that non-lawyer expertise once brought. In Professor Jones; own words: “solutions are available; may the debate flourish”.
*Professor Jones’ paper “Diversity of Expertise in Arbitration: The Past, Present and Future” can be accessed here.