Construction arbitration—particularly in cross-border disputes—can present timing and procedural challenges that require careful planning and active management. For in-house counsel and practitioners, the goal isn’t to wish away delays; it’s to anticipate, manage and navigate them effectively while achieving desired project and business outcomes.  

As discussed below, pragmatic strategies, well-organized documentation and the effective use of experts and dispute boards are essential for controlling delays and costs and for effectively managing complex arbitration proceedings.

Dispute Boards: Early Action, Real Impact

Dispute resolution boards (DRBs) and dispute adjudication boards (DABs) offer parties a practical way to resolve issues as they arise—not years later. For example, during the construction of the Pan American Games’ facilities in Lima, Perú, a DAB quickly resolved frequent disputes, helping keep the event venues on schedule. The few issues sent to arbitration were more limited, as the DAB provided a detailed, up-to-date record that the arbitrators relied on.

To make use of these boards, especially for major projects, in-house lawyers should:

• At the beginning of the contract, set up the dispute boards (DBs).
• Use the boards regularly, treating recommendations as both leverage and neutral evidence.
• Stress to project teams that documenting and discussing issues early via DBs adds credibility in later arbitration or settlement.

Documentation Is Everything

Validation of delay or disruption claims hinges on documentation and a proactive project record. Just as courts have rejected global claims lacking project-specific support, they have affirmed tribunal awards based on findings grounded in the record and established contract terms.

Consequently, in-house counsel should:

• Enforce daily logs, centralized email records and regular project reviews.
• Teach teams to flag risks, document changes and escalate problems right away.
• Use digital tools that segment the base contract, extra work and delay claims.
• Hold or attend monthly reviews and audit documentation before disputes emerge.

Good records simplify factfinding and significantly limit the scope of arbitration

Engage Experts Early

Delay and cost experts are invaluable when a delay first occurs, versus after arbitration begins. Their early analysis influences DB findings and later supports quantum calculations or cause-and-effect proof in arbitration. Therefore, counsel should engage delay and quantum experts at the first sign of a dispute. Early opinions prevent the escalation of “dueling expert” reports and unnecessary delays in arbitration. Just as courts do not favor dueling experts retained after the fact because early engagement builds credibility, International Chamber of Commerce (ICC) tribunals and the Technology and Construction Court (TCC) accept critical path and disruption analysis but scrutinize the chain of events to determine consequences. 

Arbitration Strategy: What Works

Thoughtful planning and preparation are crucial for successful, time-efficient arbitrations. Counsel should consider the following approaches to preparing and presenting their claims:

• Frame the case around DB recommendations, expert input and organized documents.
• Select arbitrators with relevant technical knowledge and an understanding of the site’s realities.
• Split technical and legal issues via phased hearings or summary resolution to manage scope and time.
• Negotiate fast-track procedures, if possible, especially for time-sensitive or nonprecedent claims.

Also, because of the cost and associated construction delays, counsel and project managers should plan budgets carefully for DB arbitration expenses, including arbitration fees, expert fees, document production, team resources and project team time. 

Finally, they should consider concurrent mediation to resolve simpler claims and facilitate payments while more complex issues are addressed. Early settlement of side issues helps keep major claims focused and within budget.

Special Considerations for International Disputes

International construction arbitration requires adjusting to various legal systems, cultures and procedural expectations. Participants in international cases should anticipate potential language or document translation issues and address them proactively in the arbitration agreement and pre-hearing preparations. Similarly, international arbitrators need to adapt management and communication styles while maintaining strict organization and confidentiality. 

Before filing for arbitration, counsel should also make sure their clients consider the key issue of enforceability in the jurisdictions where they aim to enforce favorable awards. Equally important are the selection of the arbitration seat, the lex causae and the lex arbitri.

Further, in cross-border disputes, lawyers must anticipate and plan for discovery hurdles and whether they can take advantage of the reach of assistance statutes such as 28 U.S.C. § 1782. This statute has long been considered critical for obtaining foreign evidence and testimony. However, in the 2022 case of ZF Automotive US, Inc. v. Luxshare, Ltd., the United States Supreme Court overruled the use of that statute to obtain U.S. discovery in aid of foreign arbitration.

As with all arbitrations, participants must be careful to maintain confidentiality in construction disputes, especially when sensitive financial or technical information is involved.

Lessons and Takeaways

• Don’t overpromise on delay or disruption damages; quantification is tough, and full recovery is rare.
• Judges and arbitrators expect specific, documented claims.
• Prioritize claims with the best documentation and business impact.
• Utilize DBs for triage; establish a record for major disputes, resolve low-value issues promptly and concentrate on mission-critical disputes for arbitration.
• Conduct post-project reviews to learn from failures in documentation or communication and adjust protocols for future contracts. Defining what worked and what failed improves records and minimizes the risk of future delay.

Construction delays are almost unavoidable. However, counsel still have real agency and can limit damages by using DBs from the beginning, grounding cases in recent records and expert opinions, and managing procedures such as DRBs and DABs through targeted arbitration and mediation. This can help practitioners reduce pain, risk and costs. Project teams succeed by focusing on what they can control. And a proactive legal approach can turn an unavoidable delay into an advantage, making risks manageable and preventing costly overruns.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice. If you require legal or professional advice, please contact an attorney.