Construction Disputes: Suitability And Up-Front Considerations For Arbitration Rule Selection

The selection of arbitration for complex construction projects continues to increase¹ – and, for good reasons: its finality, confidentiality and rules are suitable for complex, multiparty, and technically demanding matters. The flexibility of arbitration – tailoring procedures, selecting technically qualified arbitrators and adapting the process to the needs of the project – often makes it an effective forum for managing the unique challenges of construction conflicts.² Knowing that a potential dispute frequently involves intricate factual investigations, overlapping contractual relationships and the need for decisions in a timely manner to keep projects on track, parties often choose arbitration up front as the contractual dispute resolution process on construction projects.³

Arbitration's procedural flexibility allows for tailored mechanisms such as joinder to address complex multiparty arrangements, bifurcation of proceedings to resolve threshold issues efficiently, and structured discovery and document exchange processes suited to the needs of the dispute. The use of experts, whether party-appointed or tribunal-appointed, helps clarify technical matters critical in construction claims. Furthermore, the availability of interim measures and emergency arbitration ensures that parties can obtain urgent relief when necessary, thereby maintaining the momentum of ongoing construction work while the arbitration progresses.

With that in mind, it is important to consider which rules may be most suitable for each particular project. Along these lines, this chapter examines and compares key practices across major arbitral bodies – the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), the International Centre for Dispute Resolution (ICDR) and the United Nations Commission on International Trade Law (UNCITRAL) – including joinder, bifurcation of proceedings, discovery and document exchange, use of experts, interim measures and emergency arbitration. The aim is to help practitioners assess the institutional rules that may be most suitable for their construction-related project and how up-front choices at the time of contracting may greatly influence any later disputes.

Joinder of necessary parties and multiparty arbitrations

Construction projects often involve multiple parties (e.g., owners, contractors, subcontractors and equipment suppliers) and multiple contracts, each with separate dispute resolution terms. Delays, constructive changes or unforeseen conditions in any one part of a construction project can lead to cost overruns for any number of the involved parties that have different contracts.⁴ Contractors may need to ensure that liability for a subcontractor's work can be transferred to the appropriate party; therefore, to resolve disputes effectively and avoid conflicting outcomes, parties may want to join all parties involved in a claim into a single proceeding.

Joinder permits a third party to become part of an ongoing arbitration, either as a claimant or a respondent, depending on the nature and type of claim.⁵ This can occur at the request of an existing party or through the third party's own initiative.⁶

Joinder is distinct from multiparty arbitrations, which is another option for the arbitration of construction disputes. In multiparty arbitrations, multiple claimants bring separate yet related claims against a respondent, and these claims are submitted collectively to an arbitral tribunal at the outset of the proceedings and do not require any additional consent beyond the original agreement to arbitrate disputes under the contract, which is required for any joinder.⁷

Major arbitral institutions share a common goal of procedural efficiency and therefore recognise joinder as a mechanism to bring necessary parties in a dispute to the same proceeding.⁸ Any request for joinder requires consent by all, or some of, the parties, regardless of the arbitral institution;⁹ however, each institution adopts distinct procedural rules about when and how to allow additional parties to join an arbitration.

For instance, Article 7 of the ICC 2021 Arbitration Rules (the ICC Rules)requires an existing party to submit a formal request for joinder to the ICC secretariat to add a third party to the arbitration before the confirmation or appointment of any arbitrator.¹⁰ No party may be joined after the confirmation or appointment of any arbitrator unless (1) all parties agree otherwise, including the additional party, or (2) the tribunal (once constituted) and the additional party, agree.¹¹ The latter half of the rule is an 'exception to the requirement of unanimous consent by the parties to joinder of new parties'.¹²

In practice, this means that an existing party may join a third party at the outset of the arbitration, despite objections by the opposing party. After the confirmation or appointment of any arbitrator, however, joinder of a consenting third party requires consent by the opposing party or consent by the tribunal once constituted. Joinder of a non-consenting third-party is not allowed.

Similarly, Article 8 of the ICDR International Dispute Resolution Procedures (the ICDR Rules) generally restricts joinder after the appointment of an arbitrator unless (1) there is unanimous party consent, including the additional party, or (2) the tribunal (once constituted) and the additional party, approve.¹³ Once the arbitral tribunal is constituted, 'even if a party (ie, claimant or respondent) objects to the joinder of a new party, the tribunal can nevertheless order the joinder of an additional party provided that doing so would serve the interests of justice and the additional party consents to joinder'.¹⁴ Joinder of a non-consenting third-party after the appointment of an arbitrator is not allowed under the ICDR rules either.

In contrast, Article 22 of the LCIA Arbitration Rules 2020 (the LCIA Rules) and Article 17(5) of the UNCITRAL Arbitration Rules 2021 (the UNCITRAL Rules) offer more flexibility in terms of the timing of the request to join a third party. The LCIA Rules allow joinder at any time after the request for arbitration is received electronically by the LCIA registrar provided the tribunal (once constituted), the third person and the applicant party have 'consented expressly to such joinder'.¹⁵ Further, if the new party agrees to accept the arbitration agreement, there is no requirement that the joined party has to be a party to the arbitration agreement under which the arbitration was commenced.¹⁶

The fact that the parties agreed to LCIA arbitration (including Article 22) permits joinder of a new party even if there is no existing arbitration agreement between the various parties.¹⁷ The LCIA Guidance Note for Parties and Arbitrators provides the following:

The UNCITRAL Rules also permit joinder once the arbitral tribunal is constituted, but, unlike the LCIA Rules, the third party must be bound by the arbitration agreement;¹⁹ therefore:

Parties can only work around this restriction by explicitly authorising joinder under the UNCITRAL Rules when drafting their arbitration agreements.²¹

Article 18 of the SIAC Arbitration Rules 2025 (the SIAC Rules) stands out for its dual-track approach: joinder can be requested at any time before or after the constitution of the tribunal and by both parties and non-parties alike.²² Under the SIAC Rules, 'additional parties can be joined to an arbitration when either (a) the additional party to be joined is prima facie bound by the arbitration agreement, or (b) all parties, including the additional party to be joined, have consented to the joinder'.²³ The SIAC Rules do not, however, extend the possibilities of joinder to cases where a non-party to an arbitration agreement seeks to join an arbitration unilaterally, without the consent of the parties to that agreement or to situations of forced joinder.²⁴

In summary, while all institutions aim to balance efficiency with fairness, the ICC and ICDR rules generally encourage joinder before the appointment of arbitrators, the LCIA and UNCITRAL rules have more flexibility for joinder after the tribunal is constituted (under certain conditions), and the SIAC Rules offer a hybrid model that accommodates both.

In construction arbitrations, the procedural flexibility of the LCIA, UNCITRAL and SIAC rules to join parties before or after the constitution of the tribunal can be beneficial in circumstances when the issues and responsible parties only become clear over time. Further, the fact that there is no requirement under the LCIA Rules that the joined party be a party to the arbitration agreement under which the arbitration was commenced is an advantage in construction arbitrations where more than one arbitration agreement may be at issue.

The arbitration agreement that the parties draft at the time of entering into contractual relations determines how the arbitration process proceeds in each institution.²⁵ In the context of construction arbitrations, parties should consider including a tailor-made procedural regime for joinder or intervention in the arbitration agreement or, alternatively, a provision that all the parties involved in the project enter into a separate and stand-alone 'umbrella agreement', which explicitly allows for all related parties to be joined together.²⁶ 'The cost of setting up a second or even third tribunal will be saved even if the one arbitration actually conducted will be rather more complex.'²⁷

To conclude, if there is a potential for a multiparty dispute, careful consideration should be given to rule selection and drafting so that the parties obtain their bargained-for dispute process.

Bifurcation

Construction disputes often involve complex factual and legal issues, including questions of liability or causation. In large-scale infrastructure projects, resolving all issues simultaneously can be inefficient and costly and may unnecessarily prolong the arbitration. For example, a tribunal may be asked to determine whether a contractor is liable for delays before assessing the financial consequences of those delays.

In such cases, parties may seek to bifurcate the proceedings, dividing the arbitration into separate phases to address discrete issues sequentially. Bifurcation can promote procedural efficiency, reduce costs and potentially facilitate settlement by resolving threshold issues early in the process.

Bifurcation involves separating proceedings into different phases for the sake of efficiency.²⁸ This is appropriate if it allows arbitrators to focus on preliminary issues of which the 'resolution will avoid wasted effort and expense'.²⁹ As a result, it is has become possible for cases to be bifurcated so that the tribunal may first analyse subjects like jurisdiction prior to liability or liability prior to quantum.³⁰ The rationale is the potential for time or cost savings by not requiring submissions on certain issues if there can be a preliminary decision on an foundational issue.³¹ Nevertheless, the decision to bifurcate requires careful consideration, because there is potential that it could actually lengthen the arbitration process in particular circumstances.³²

The ICC, ICDR and SIAC rules explicitly permit bifurcation of proceedings, so long as the proceedings are made more efficient.³³ The ICC Rules provide for bifurcation proceedings if doing so would 'genuinely be expected to result in a more efficient resolution of the case'.³⁴ The ICDR Rules allow bifurcation if it allows the tribunal to resolve issues that could 'dispose of all or part of the case'.³⁵ The SIAC Rules similarly empower tribunals to bifurcate proceedings 'to focus their presentations on issues the determination of which could dispose of all or part of the case'.³⁶

The emphasis with bifurcation in these institutions is efficiency; therefore, if there is factual overlap on preliminary issues, duplicative briefing would be likely in a bifurcated proceeding.³⁷ In that case, the proceedings likely would not be bifurcated because it would more than likely slow down the proceedings; therefore, bifurcation is effective only in certain matters.

Although not mentioned explicitly, the LCIA and UNCITRAL rules permit bifurcation as part of the arbitral tribunal's inherent case management powers. Under the LCIA Rules, tribunals have broad discretion to manage proceedings, including determining the sequence in which issues are addressed – effectively allowing bifurcation where it promotes fairness and efficiency.³⁸ The UNCITRAL Rules, emphasise party consultation on procedural organisation, and tribunals may use case management tools to structure proceedings in phases.³⁹

In all three frameworks, while the term 'bifurcation' is absent, the procedural flexibility afforded to tribunals allows for its use when it aligns with the goals of efficiency and fairness.

Arbitral case law also has a framework for bifurcation, where the tribunal considers whether the issues to be bifurcated are (1) prima facie serious and substantial, (2) able to be examined without prejudging or entering the merits and (3) dispositive of all or an essential portion of the claimant's claims.⁴⁰

In light of these considerations, bifurcation remains a valuable but context-dependent tool, requiring a nuanced evaluation of its potential impact on the arbitral process. When requesting bifurcation, parties often ask for early determination in the alternative. Taking this possibility into consideration, most of the arbitral rules provide for early dismissal as well.⁴¹

Ultimately, when considering bifurcation, efficiency is key. Bifurcation is treated with varying degrees of formality across arbitral institutions. The ICC, ICDR and SIAC rules provide explicit frameworks that encourage bifurcation when it enhances procedural efficiency, particularly in resolving threshold issues early. In contrast, the LCIA and UNCITRAL rules rely on the tribunal's broad procedural discretion to achieve similar outcomes without expressly naming bifurcation. This flexibility can be especially useful in complex construction disputes, where early resolution of jurisdictional or liability issues may streamline the process. The choice to bifurcate in general rests on whether it will genuinely advance the arbitration's efficiency and fairness.

Interim measures and emergency relief

Interim measures exist to provide parties with relief or a remedy when called for by challenging and imminent circumstances often involving the preservation of evidence or the status quo or for providing security for costs.⁴² Similarly, emergency measures include measures available to resolve urgent disputes that require a solution before a full tribunal can be constituted.⁴³ Construction disputes often require interim or emergency measures because of their unique needs where mid-project disputes arise. This type of relief may typically be requested of a court with jurisdiction or to the arbitral tribunal itself. Arbitral rules provide guidance on these measures.

Across the spectrum of arbitral institutions, arbitral rules governing interim measures are relatively uniform. Arbitral rules generally give the tribunal broad discretion to grant relief⁴⁴ but specify that the powers are generally used for preserving evidence, providing security for costs or preserving the status quo.⁴⁵ In providing for these remedies, arbitrators, at their discretion, may issue awards or orders granting such relief.⁴⁶

In arbitration, parties may also request interim relief from competent courts.⁴⁷ The rules of arbitral institutions generally provide that seeking interim relief from a court does not breach the arbitration agreement.⁴⁸ There are differences between the rules in respect of the timing and notice of these interim relief requests to courts: the ICDR, SIAC and UNCITRAL rules make no mention of timing limitations on interim measures requests to judicial authorities;⁴⁹ on the other hand, after the tribunal is constituted, the ICC and LCIA rules permit judicial requests for relief only in 'appropriate' or 'exceptional' circumstances, respectively.⁵⁰ Both institutions also require either notice or authorisation when judicial relief is sought.⁵¹

Similar to interim measures, major arbitral institutions may also provide for an emergency arbitrator to hear applications for relief before the arbitral tribunal can be constituted.⁵² Emergency arbitrators are empowered to make rulings for provisional relief.⁵³ Depending on the institution, these rulings can be either orders or awards.⁵⁴ Some institutions, like the ICC, only permit emergency arbitrators to make orders, whose enforceability can be suspect under local laws.⁵⁵

Although binding on the parties, emergency arbitrator rulings can be modified, terminated or annulled by the fully constituted arbitral tribunal.⁵⁶ The ICC Rules also explicitly permit parties to opt out of emergency arbitration provisions,⁵⁷ which can be advantageous if pre-tribunal relief from courts appears preferable in those circumstances. As soon as the tribunal is constituted, the emergency arbitrator generally has no further role in the arbitration.⁵⁸

The procedure for emergency measures depends on the arbitral institution. For example, emergency arbitrators under the ICC rules have 15 days to make a ruling after appointment, while under the LCIA and SIAC rules, emergency arbitrators have only 14 days.⁵⁹ The ICDR rules, on the other hand, have no explicit deadline for emergency measures.⁶⁰

Some institutions permit extremely expedited proceedings for emergency relief.⁶¹ Specifically, Schedule 1 of the SIAC Rules permits a protective preliminary order application to be requested alongside a request for an emergency arbitrator.⁶² This order, which can be made without notice to the other parties, must be determined within 24 hours.⁶³ Practitioners should note these deadlines and procedural possibilities when determining the institution that best suits their clients' needs as part of the up-front contractual dispute process.

Document exchange

The tasks of disclosing, producing and exchanging documents in construction arbitration can be particularly challenging given the length of construction projects and the breadth of possible documents associated with these projects, including invoices, receipts, site diaries, meeting minutes, plans, drawings, specifications and correspondence, and emails between multiple entities notwithstanding the parties to the dispute. To avoid large-scale common law type discovery, the rule-making bodies, along with the International Bar Association's Rules on the Taking of Evidence in International Arbitration (the IBA Rules), seek to prohibit 'wholesale and indiscriminate production of documents by means of the common law process of discovery'.⁶⁴

Likewise, there are fairly strict limits on the documents that may be obtained from third parties, both in the arbitral rules themselves and in the various international legal systems. Each of these considerations should be noted up front in the contractual risk allocation. If a claim may involve numerous non-parties, careful thought is needed regarding how those documents may be obtained in a later arbitration. Further, if a party would not have access to the key project documents absent arbitration, this should be carefully evaluated as the chosen arbitration rules may restrict wholesale access.

All the arbitral institutions discussed in this chapter confer wide powers on a tribunal on discovery and document production. For example, the LCIA Rules provide the most detailed authority to tribunals to order discovery or disclosure from parties to an arbitration.⁶⁵ Articles 22.1, paragraphs (iii) to (v) empower the tribunal to do the following:

Under the ICC Rules, the tribunal has 'a wide discretion to decide rules of evidence'⁶⁷ by giving the tribunal the power 'to establish the facts of the case by all appropriate means'.⁶⁸ Similarly, the UNCITRAL Rules and the ICDR Rules also give power to the tribunal to 'require the parties to produce documents, exhibits or other evidence'.⁶⁹ The SIAC Rules broadly give tribunals the power 'to conduct the arbitration in such manner as it considers appropriate'.⁷⁰

Under these rules, tribunals exert control over document disclosure and exchange in construction arbitration disputes to focus the document collection to the documents or categories of documents that are relevant and necessary to the dispute.⁷¹ The IBA Rules are reflected in the various arbitral rules through relevance and materiality requirements⁷² and provide a framework for tribunals to assess disclosure and production issues in disputes, 'including by providing greater guidance on legal privilege, a more prescriptive approach to evidence gathering and an express good faith requirement in the taking of evidence'.⁷³

Along with guidance from the IBA Rules, the arbitral institutions provide case management guidance to help control the voluminous document disclosure common in construction disputes. The ICC Rules provide case management techniques aimed at costs and avoiding overreach in the area of document production, specifically providing that parties limit 'requests to documents or categories of documents that are relevant material to the outcome of the case'.⁷⁴ In particular, they promote the 'need for measures to be cost-effective', and part of the tribunal's duties is to 'ensure that the parties will manage and control e-disclosure in a cost-effective manner'.⁷⁵

The ICC Rules do not prohibit voluminous electronic discovery of documents but instead provide that the process 'must be justified'.⁷⁶ The LCIA Rules also provide that relevance is a key determiner of whether to order production of documents.⁷⁷ Likewise, the SIAC Rules give power to order documents that 'the Tribunal considers relevant to the case and material to its outcome'.⁷⁸ Under the ICDR Rules, tribunals may order parties to produce documents deemed necessary or appropriate.⁷⁹

Document disclosure under international arbitration rules can be streamlined yet effective for construction disputes. The various arbitration rules allow for the ordering of disclosure of documents that are relevant and material to the dispute. The relevance and materiality requirements help prevent requests for documents outside the scope of the dispute, thereby limiting the costs and difficulty of disclosing and producing voluminous document sets that are more common in court-based litigation. Notwithstanding the treatment of documents under the various rules, it is important to consider where documents may be located and who possesses them to ensure that the chosen dispute process will be able to reach them.

Use of experts

Parties to a construction dispute will almost certainly rely on expert evidence to present complicated facts and technical issues that typically arise in construction projects. Various expert opinions could be needed to support a party's claim or defence. For example, industry experts may be needed to establish exactly what 'accepted industry practice' is; programming and scheduling experts may be required to provide evidence about delay claims; accounting or quantum experts may be needed to give evidence on damages, and engineering experts may be required to provide evidence relating to defects or to decipher engineering standards.⁸⁰ Even if, in the context of international construction arbitration, tribunal members possess a certain degree of expertise, it is usually still necessary and common for experts with expertise in construction-related fields to provide the requisite evidence on both sides of the dispute.⁸¹

Arbitration rules, along with the IBA Rules, presume the use of experts and broadly allow parties to appoint experts. Under ICC Rules, the tribunal 'may decide to hear witnesses', which include 'experts appointed by the parties'.⁸² Similarly, the LCIA Rules on witnesses apply to 'any fact or expert witness on whose evidence a party relies'.⁸³ The SIAC Rules give tribunals the power to direct 'parties to give notice of the identity of witnesses, including expert witnesses, whom the parties intend to produce'.⁸⁴ The UNCITRAL Rules allow witnesses who give evidence to include 'expert witnesses, who are presented by the parties to testify to the arbitral tribunal on any issue of fact or expertise'.⁸⁵ The IBA Rules provide the most in-depth guidance on party-appointed experts: '[a] Party may rely on a Party-Appointed Expert as a means of evidence on specific issues', going so far as to outline certain requirements for expert reports.⁸⁶

The institutions' rules also contemplate that tribunals may appoint experts, although parties from common law jurisdictions are often not comfortable with this arrangement.⁸⁷ The various rules provide robust directions on the use of these experts. Interestingly, the ICDR Rules are solely focused on tribunal-appointed experts⁸⁸ and only provide for party-appointed expert witnesses at the hearing 'to testify on the points at issue'.⁸⁹ The provisions regarding tribunal-appointed experts require tribunals to consult with the parties before appointing the experts,⁹⁰ and these experts must 'be and remain impartial and independent of the parties'.⁹¹ The IBA Rules also provide detailed instructions on the appointment of these experts, in line with the other institutions' rules, as well as the contents of their expert reports.⁹²

If tribunal-appointed experts are used in a construction dispute, the rules give parties the opportunity to question these experts at the hearing and to present their own experts on relevant issues.⁹³ Despite all of this guidance, in practice, tribunal-appointed experts remain the exception in construction arbitration disputes, and tribunals typically only appoint experts if requested by a party or if the tribunal lacks the necessary expertise to make a decision concerning a relevant technical decision for an issue in which no other expert has been appointed.⁹⁴

There is typically great flexibility in how expert opinions may be presented to a tribunal – individual reports from each side, a joint report with disagreements noted, oral presentations, cross-examinations and even joint presentations and examinations (sometimes referred to as 'hot-seating' or 'hot-tubbing'). Joint reports and concurrent testimony, like hot-tubbing, can help to identify areas of agreement and disagreement between parties and improve the tribunal's understanding of the issues in dispute.⁹⁵ The method and timing of presentations is generally left to the agreement of the parties and the discretion of the arbitrators – and for good reason: given that disputes evolve and are inherently difficult to predict, flexibility in the arbitral process on experts is an important benefit.

Conclusion

There is an oft-told refrain that every construction project is unique. The flexibility of arbitral rules lends themselves to addressing disputes that arise from unique situations; however, not all arbitral bodies apply the same rules, and not all rules cover the same issues or even how the parties may wish to allocate a particular risk.

Up-front considerations of the arbitral rules that may best suit a potential dispute on a project and contracting for specific procedures on issues of importance to a party (e.g., expert processes and document disclosure) are key to ensuring a suitable framework if a dispute arises after the fact. A close examination of the points discussed in this chapter (and an easy reference chart below) will hopefully assist in this important selection.

Arbitral rules for issues discussed