The 2019 Report ‘Construction Industry Arbitrations: Recommended Tools and Techniques for Effective Management’ is intended primarily for arbitrators who do not have much experience in construction arbitrations conducted under the ICC Rules, or who wish to be reminded of the options available or of the practice of others. Some proposals also concern the parties and their counsel.

Many developments have taken place in the construction industry and the dispute management of complex international transactions since 2001; such developments have been considered and factored into the revised Report. Construction arbitrations continue to need careful handling:

  • they often relate to specialized forms of contract unknown to those not involved in construction,
  • frequently give rise to technical or other issues requiring expert evidence, and
  • tend to be fact intensive and to entail many more documents than other types of disputes.

Account must also be taken of new and evolving forms of pre-arbitral dispute resolution intended to i) avoid disputes, and ii) reduce the number and scope of disputes that need to be arbitrated. Most standard forms and conditions now provide for mandatory pre-arbitral mechanisms, and so, construction disputes that make their way through to arbitration may be particularly large and/or complex and, in any event, incapable of resolution except by arbitration. Accordingly, the tribunal, and counsel, need to be familiar with the range of procedural tools available for dealing with such arbitrations. The intention of this Report is hence to provide updated practical guidance for the handling of construction arbitrations efficiently (and not to repeat advice applicable to arbitration in general).

Some suggestions in the Report necessarily go beyond management techniques. For example, it was thought desirable to outline the particular qualifications parties should consider when nominating an arbitrator in an international construction arbitration. The Report also describes some procedural matters which are specific to the management of a construction arbitration. This Report’s main aim is to provide suggestions for handling construction arbitrations efficiently and effectively through the use of case management techniques so as to avoid unnecessary time and expense.

When proposing tools and techniques for efficient management of construction arbitrations, the Report tries to accommodate the approaches of civil law and common law. However, it should not be thought that there is any single ‘right’ way in which a construction arbitration should be conducted. The Report sets out or recommends alternative courses of action and the factors that arbitrators and parties could bear in mind when considering them. The Report does not attempt to provide fixed solutions of universal application as there are none. Every case is different and everyone should pause and consider whether a standard or common technique is appropriate.

The proposals are not intended to be used to override the wishes of the parties. Party autonomy is the kernel of international commercial arbitration. Nevertheless, from time to time parties may not have been aware of all the courses open to them or the powers of the tribunal; arbitrators are therefore not only entitled but encouraged to inform the parties if they consider that a proposed course is not best suited to a case and propose an alternative or alternatives. Above all, procedures in construction arbitrations should be expeditious and cost-effective.

A summary of the main recommendations and suggestions in the Report, together with cross-references to the main paragraphs of the Report, is to be found at the beginning of the Report.

Acknowledgments

Construction Industry Arbitrations: Recommended Tools and Techniques for Effective Management is a Report of the ICC Commission on Arbitration and ADR.

This second edition was conducted under the joint leadership of Aisha Nadar and Christopher Seppälä who were advised by Dr Nael G. Bunni and Judge Humphrey Lloyd QC, who co-authored the original 2001 report. Dr Mohamed Abdel Wahab, Elina Aleynikova, Essam Al Tamimi, David Barry, Caroline Duclercq, Shelly Ewald, Juan Eduardo Figueroa Valdés, Dr Robert Gaitskell QC, Dr Patricia D. Galloway, Troy L. Harris, John W. Hinchey, Jane Jenkins, Dr Doug Jones, Pablo Laorden, Christopher Lau, Crenguta Leaua, Pierrick Le Goff, Erin Miller Rankin, and Elena Otero-Novas Miranda all contributed to the update of the Report.

The first edition was produced under the joint leadership of Dr Nael G. Bunni and Judge Humphrey Lloyd QC, and by Michael E. Schneider, William Laurence Craig, Dr Aktham El Kholy, Dr jur. Joachim E. Goedel, Vera van Houtte, Sigvard Jarvin and Dr Igor Leto.

With the participation of Carita Wallgren Lindholm (Chair, ICC Commission on Arbitration and ADR), Christopher Newmark (former Chair, ICC Commission on Arbitration and ADR) and Dr Hélène van Lith (Manager, ICC Commission on Arbitration and ADR).