From Deal Table to Tribunal: The Case for Transactional Lawyers as Arbitrators in Infrastructure and Energy Disputes

There is a moment in many infrastructure and energy arbitrations when the dispute stops being about the clause and becomes about the bargain. The tribunal is asked to decide whether a delay was excusable, whether a payment mechanism still works, whether termination was justified. By then, the dispute is dressed in pleadings, but its roots often lie much earlier: at the term sheet stage, during risk allocation, in the financing structure, in the sequencing of permits, in the allocation of operational risk, or in drafting that did not quite capture the commercial compromise.

There is plenty of discussion about transactional lawyers drafting better arbitration clauses, and about disputes lawyers getting involved earlier in deals but if deal-side expertise matters, why does it disappear when the dispute reaches a tribunal?

In appropriate cases, transactional lawyers should be considered as arbitrators particularly for projects connected to African markets. The argument is not that transactional lawyers should replace disputes lawyers. Arbitration needs people who understand procedure, evidence, jurisdiction, due process and award writing. The point is narrower: where a dispute concerns the structure, economics and risk allocation of a project, a tribunal may benefit from a decision-maker who understands how such transactions are built. For projects connected to African markets, the point has added significance because infrastructure need, energy transition, private capital and the widening of arbitral appointment pipelines all meet in the same place.

Infrastructure and energy disputes are often deal disputes

Large infrastructure and energy projects are rarely governed by one contract. A power project, renewable energy development, transport PPP or data centre project may sit within a web of project documents: concession agreements, power purchase agreements, EPC contracts, financing agreements, guarantees, shareholder arrangements, direct agreements and permits.

When a dispute arises, the issue before the tribunal may appear narrow. Was notice properly served? Was a milestone missed? Was payment due? Was a party entitled to suspend performance or terminate? But the answer may depend on how the entire project structure fits together. A delay in obtaining a licence may affect financial close. A regulatory change may affect pricing. Foreign exchange restrictions may disrupt payment mechanics. A contractor’s delay may trigger liquidated damages, lender concerns and project company cash-flow issues. These are not abstract legal issues. They are what transactional lawyers spend years advising on before anyone sends an arbitration notice.

Transactional lawyers are trained to ask questions that matter: Who was intended to bear this risk? Was it priced? Was it within a party’s control? Was it intended to be a termination trigger, a compensation event, a relief event or simply an operational risk? Does the interpretation advanced fit the wider commercial structure?

Those questions do not replace legal analysis but sharpen it.

The value of deal-side experience

By the time a dispute reaches arbitration, the parties’ positions have hardened. The pleadings are clean. The correspondence is curated. Witness statements are prepared to make commercial life appear more orderly than it usually is.

Anyone who has negotiated a complex transaction knows that reality is messier. Parties compromise. They accept imperfect drafting because financial close is approaching. They use precedent language from another market without testing whether it works for this project. They leave matters to be “agreed later”, only to discover that later has become contentious. They assume a “standard” provision carries a shared meaning when, in truth, each side read it differently.

A transactional lawyer has seen this before. That experience can help a tribunal avoid two common mistakes: treating commercial context as irrelevant or treating it as a licence to rewrite the bargain. A tribunal that understands the commercial architecture of the transaction is better placed to interpret the bargain coherently.

This is especially important in infrastructure and energy disputes, where contractual provisions often operate across a wider project structure. A termination clause may make little sense without understanding the financing documents. A payment default may carry different consequences where lenders, security agents and direct agreements are involved. A change-in-law clause may affect not only legal compliance, but tariff assumptions, bankability and long-term project viability.

The better the tribunal understands the structure, the better it can decide what went wrong.

Why this matters for Africa-connected projects

This argument is not limited to Africa, but the opportunity to act on it is particularly timely for projects connected to African markets, for three reasons.

First, recent institutional data points to growing African participation in international arbitration. The LCIA's 2024 Annual Casework Report recorded African parties as 17% of parties in LCIA arbitrations, up from 8% in 2023 (download.aspx) resulting in African parties as well as Western European parties constituting a higher percentage of the LCIA’s caseload than parties from the United Kingdom, while the ICC’s 2024-Statistics_ICC_Dispute-Resolution.pdf recorded parties from 31 African countries.

Second, there is a persistent gap between where Africa-connected disputes are decided and who decides them. Many projects involve a mix of local and international participants. The arbitration may be seated outside Africa, governed by non-African law, but the underlying project is connected to African markets, assets and regulatory environments. Tribunals do not always include arbitrators with direct experience of the region or sector.

Thirdly, appointment practices are evolving. Initiatives like the African Promise (The African Promise | Onyema Arbitration), leadership appointments at major institutions, and growing support for programmes like the Africa Arbitration Academy (Africa Arbitration Academy – Investing in the legal future of Africa) all reflect a shared commitment to widening the pool. The opportunity now is to build on that momentum by recognising transactional and in-house experience as part of what makes an arbitrator qualified, not just disputes experience alone. This is not a diversity gesture. It is a recognition that the people who built the projects may be well placed to decide the disputes arising from them.

Why this is about arbitrators, not just counsel

Transactional lawyers already help disputes teams understand the project documents, the commercial background and financing structure, but the point goes further: in appropriate cases, they should not only advise arbitration counsel, but also sit as arbitrators.

Party autonomy is one of arbitration’s central strengths. In technical infrastructure and energy disputes, expertise should include people who understand the underlying transaction and not be limited to advocacy experience alone. This does not mean appointing arbitrators who lack procedural competence. It means recognising that a tribunal may benefit from someone whose professional life has involved building, financing and negotiating the kinds of projects now in dispute.

The objections are real

There are fair objections. Some transactional lawyers do not know arbitral procedure well enough to sit as arbitrators. That matters as arbitrators must understand due process, jurisdiction, conflicts, disclosure, evidence, procedural orders, deliberations and award writing. The answer is not to pretend otherwise. The answer is appointment readiness: training, institutional engagement, writing, tribunal secretary work where appropriate, smaller appointments, and disciplined conflict management.

There may also be conflict concerns, particularly for in-house lawyers active in the same sectors in which appointments may arise. Those concerns must be handled carefully. The 2024 IBA Guidelines on Conflicts of Interest in International Arbitration remain an important reference point but potential conflicts are not a reason to exclude a whole category of professionals, they are a reason for proper disclosure and careful appointment decisions.

There is also a mental shift involved. Transactional lawyers are trained to advise, negotiate and protect one party’s position. Arbitrators must decide independently. Not everyone will make that transition well, but many can, and some will bring exactly the judgment that these disputes need.

A broader appointment conversation

The arbitration community has made real progress on diversity of nationality, gender, age and geography. The work should continue as there is a case for diversity of professional background which deserves separate attention.

If infrastructure and energy disputes are to be decided by tribunals that understand the projects behind them, appointment practices should look beyond the usual profiles. This is particularly important for women, African practitioners and in-house lawyers, who may have significant sector expertise but fewer traditional routes to appointment. The question should not be whether a candidate looks like the conventional arbitrator. The better question is whether the candidate has the independence, judgment, legal ability, sector knowledge and procedural discipline to decide the dispute fairly and well.

Infrastructure and energy disputes will only become more significant. The deal table and the tribunal are not separate worlds. The obligations argued about in arbitration were negotiated somewhere. The risks contested in pleadings were allocated somewhere. The defaults alleged in witness statements were often anticipated, resisted or compromised during drafting.

The argument, therefore, is not that those who negotiated a particular deal should later decide disputes arising from it. Independence and impartiality remain fundamental. The point is that, in complex infrastructure and energy arbitration, parties benefit from tribunals that understand not only the law, but also the commercial architecture of the projects.