Whether one or three arbitrators are appointed, it is essential that they are familiar with the industry and construction contracts, and have time to devote to the case. Sufficient enquiries should be made at the time of their appointment in that regard.
Parties are entitled to object to the nominated arbitrators. Careful consideration should therefore be given to the nominees to avoid such objections being raised in the first place.
The request for arbitration and answer
The way in which the parties approach their early submissions can make a considerable difference to the effective management of the arbitration.
Institutional arbitration rules do not typically require parties to set out a detailed statement of case at this point. However, the more detailed the particulars of claim are, the more informed the parties and the tribunal will be to make decisions on procedural measures and case management techniques at a very early stage in the proceedings.
Terms of reference, case management conference and procedural timetable
Typically, the framework for the arbitral proceedings is established through the terms of reference agreed between the parties and the tribunal, a case management conference and the procedural timetable.
These steps provide opportunities for the arbitration to be streamlined. For example, in the terms of reference, parties might consider allowing the president of the tribunal (if there is a three-member panel) to decide on certain procedural issues alone.
Ahead of the case management conference, parties should submit joint or separate case management proposals. Active cooperation and exchange of views on the procedures and case management techniques that may be appropriate can be helpful at this stage.
Parties should make every effort to comply with the procedural timetable, with extensions and revisions limited to clearly justifiable circumstances. This requires a realistic approach to any time periods incorporated into the timetable.
Construction projects usually involve significant documentary records. Documents produced by a party should be directly relevant to the issues relevant to the dispute, as defined by the tribunal. Agreeing a coherent approach to the documents at the outset can save significant time and costs.
Parties typically produce documents on which they intend to rely. Requests for production of additional documents should be avoided unless they are clearly relevant and material to the outcome of the case.