Why Construction Arbitration is Complex? (XIV)

The Case Management Conference and the Procedural Timetable

Nobody would climb Everest without carefully planning the route, resources and timing. A construction arbitration demands the same preparation. And the case management conference is the moment to do it.

Every arbitration begins with the organisation of proceedings. However, in construction arbitration this initial phase has particular importance, precisely because of the complexity we have been describing throughout this series.

The case management conference and the proper setting of the procedural timetable are, in many respects, the foundation on which the efficiency of the arbitration rests.

The case management conference

This conference, also known as the preparatory conference or procedural organisation meeting, is the initial meeting between the arbitral tribunal, the parties and their counsel to agree on how the proceedings will be conducted.

It defines the rules of the game: which submissions will be filed, on what timetable, what evidence will be admitted, how the documentation will be managed and when the hearing will be held.

In construction arbitration, this conference is particularly important because the claims are complex and the evidence to be used is highly varied including technical documents, construction programmes, expert reports, testimony from technical and management staff, and site visits.

The sooner all of this is properly organised, the more efficient and less costly the proceedings will be.

The chronology, the cast of characters and the glossary

One of the most practical recommendations for construction arbitrations is that the parties should file, early in the proceedings, three auxiliary documents that will greatly assist the tribunal in understanding the case: a chronology of relevant events, a list of the individuals who participated in the construction process, and a glossary explaining the technical and contractual terms and definitions used.

The chronology is particularly valuable in construction disputes because contracts are typically long — sometimes several years — and it is essential to establish clearly when the events giving rise to the dispute occurred. Placing events in their proper sequence enables the arbitral tribunal to understand the causal chain of problems and to evaluate the evidence more effectively.

Ideally, the parties should work together on these auxiliary documents, agreeing at least on facts that are not in dispute. This reduces the time the arbitral tribunal must spend understanding the background and focuses the debate on the genuinely contested points.

The procedural timetable

Setting the procedural timetable must strike a balance between the need to resolve the arbitration quickly and efficiently and the genuine complexity of the case. It makes no sense to fix unrealistically short deadlines that will later have to be extended, nor excessively long ones that unnecessarily prolong the proceedings and increase costs.

In construction arbitrations, availability is a key factor. Both the arbitrators and the counsel for the parties must have sufficient time to devote to the case.

An arbitrator with too many concurrent matters may delay the delivery of awards and make it harder to schedule hearings.

The same can be said of counsels with many cases who cannot find the time to draft the submissions.

For this reason, when choosing counsel and arbitrators, it is important to ask about their real availability for the matter.

It is also important to plan in the timetable for how documentary evidence —which in construction can be enormous in volume— will be managed, and when and how expert reports will be submitted. The latter typically require generous time allowances because experts need to access the project documentation, review it in detail and produce rigorous technical reports.

A well-conducted case management conference, with a thoughtfully designed procedural timetable, is the best investment the parties can make at the outset of the arbitration. It is far more difficult and costly to correct poor initial planning than to devote the necessary time to organising it properly from the start.

In the next articles we will delve into one of the most complex and decisive aspects of construction arbitration: evidence. We begin with documentary evidence.

If you liked this article, please share it 👇