General information
Parties should always consider all possible alternative dispute resolution mechanisms and even contemplate combining them where appropriate. Reflecting on the full range of available options—whether mediation, arbitration, or other hybrid methods—can lead to more tailored, efficient, and effective outcomes, aligning with the specific needs and goals of the parties involved.
If classic stages are often followed in arbitration, it is crucial to always remember that - as long as fundamental procedural principles (equality between parties and right to be heard) are respected - parties have the autonomy to shape their procedure. They may deviate from the traditional route developed in practice or complement and enrich it with different tools tailored to their needs.
These steps may be discussed at a case management conference (“CMC”) during which they can comment on draft terms of reference (“TOR”) and specific procedural rules contained in a procedural order n°1 (“PO1”). During the CMC, arbitral tribunals will then be able to help the parties in finding an agreement or decide on the calendar. Next section introduces several tools designed to offer parties the required efficiency.
It is common practice in international arbitration that each party appoints its own experts on technical issues.
It is worth the while reminding parties and arbitral tribunals that in some cases, it might be more efficient to have an expert appointed by the tribunal.
Written submissions in construction arbitrations tend to be longer and longer. By the same token, the length of the proceeding may also be longer that it could (should) be.
Parties could avoid that by trying to agree on rules limiting the length of the submissions or on the schedule for the exchange of briefs.
In the absence of an agreement by the parties, arbitral tribunals have the power to decide on procedural rules in the absence of an agreement by the parties (Article 21. – Rules Governing the Proceedings. “The proceedings before the Arbitral Tribunal are governed by the Rules and, where the Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration”). Therefore, keeping in mind the necessary respect for equal treatment and due process, arbitral tribunals may think of imposing some limits to the submissions on the calendar. This is, however, a very delicate exercise so that it is always better to try and find consensus by discussing with the parties.
Parties, counsel, and arbitrators may find information here below aimed at enhancing the efficiency of the management of their construction arbitration proceedings.