The Guide to Construction Arbitration

Global Arbitration Review

General Editors Stavros Brekoulakis and David BrynmorThomas QC

Third Edition

The Guide to Construction

Arbitration

Third Edition
Editors
Stavros Brekoulakis and David BrynmorThomas QC

Reproduced with permission from Law Business Research Ltd
This article was first published in October 2019
For further information please contact [email protected]

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Rakesh Rajani Published in the United Kingdom by Law Business Research Ltd, Meridian House, 34-35 Farringdon Street, London EC4A 4HL, UK © 2019 Law Business Research Ltd www.globalarbitrationreview.com

No photocopying: copyright licences do not apply. The information provided in this publication is general and may not apply in a speciﬁc situation, nor does it necessarily represent the views of authors’ ﬁrms or their clients. Legal advice should always be sought before taking any legal action based on the information provided.The publishers accept no responsibility for any acts or omissions contained herein.Although the information provided is accurate as of September 2019, be advised that this is a developing area.

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Acknowledgements

The publisher acknowledges and thanks the following ﬁrms for their learned assistance throughout the preparation of this book:

39 ESSEX CHAMBERS
3VERULAM BUILDINGS
ADVOKATFIRMAN RUNELAND AB
AKIN GUMP STRAUSS HAUER & FELD LLP
ANKURA
ARGOS CONSTRUCTION
BÄR & KARRER
CENTRE FOR COMMERCIAL LAW STUDIES, QUEEN MARY
UNIVERSITY OF LONDON

CLIFFORD CHANCE
CORRS CHAMBERSWESTGARTH COVINGTON & BURLING LLP CROWN OFFICE CHAMBERS DEBEVOISE & PLIMPTON LLP
DECHERT (PARIS) LLP
HERBERT SMITH FREEHILLS LLP
KING & SPALDING

KPMG SA
MATTOS FILHO,VEIGA FILHO, MARREY JR.
E QUIROGA ADVOGADOS

PAKSOY
QUINN EMANUEL URQUHART & SULLIVAN LLP
SCHELLENBERGWITTMER LTD
THREE CROWNS LLP TOWER CHAMBERS VINSON & ELKINS WHITE & CASE LLP
ZHONG LUN LAW FIRM
ZULFICAR & PARTNERS LAW FIRM

Contents

Introduction ........................................................................................................... 1

Stavros Brekoulakis and David Brynmo r T homas QC

Part I: International Construction Contracts

1234567
The Contract: the Foundation of Construction Projects................................ 7

Aisha Nadar

Parties to a Construction Contract.............................................................. 18

Scott Stiegler

Bonds and Guarantees ................................................................................ 27

Jane Davies Evans

Pricing and Payment .................................................................................. 43

T o ny Dymond and Sophia Burton

Introduction to the FIDIC Suite of Contracts............................................. 54

Ellis Bake r , Anthony Lavers and Rebecca Major

Allocation of Risk in Construction Contracts............................................. 74

Ellis Bake r , R ichard Hill and Ibaad Hakim

Contractors’ Claims, Remedies and Reliefs................................................. 94

James Bremen and Leith Ben Ammar

Contents

89
Employers’ Claims and Remedies ..............................................................105

James Bremen and Mark Grasso

Delay and Quantum: the Role of Delay Analysis Programmes and Financial Methods for the Computation of Costs and Damages in Construction Arbitration ...........................................................................114

Jean-François Djanett and Jean-Luc Guitera

Hamish Lal, Brendan Casey and Josephine Kaiding

Part II: Dispute Resolution for Construction Disputes

11 12 13
Claims Resolution Procedures in Construction Contracts..........................145

Philip Norman and Leanie van de Merwe

Dispute Boards..........................................................................................155

Lindy Patterson QC and Nicholas Higgs

Alternative Dispute Resolution in Construction and Infrastructure Disputes....................................................................................................165

Marion Smith QC, Hannah McCarthy and Joe-han Ho

14 15 16 17
Suitability of Arbitration Rules for Construction Disputes .........................172

David Kiefer and Adrian Cole

Agreements to Arbitrate Disputes in Construction Contracts .....................179

Paul Darling QC and Samar Abbas

Subcontracts and Multiparty Arbitration in Construction Disputes.............188

Stavros Brekoulakis and Ahmed El Far

Interim Relief, Including Emergency Arbitrators in Construction Arbitration ...........................................................................201

Philip Norman and Leanie van de Merwe

Contents

General Considerations and Special Issues..................................................212

Pierre-Yves Gunter and Anya Marinkovich

19 20 21 22
Expert Evidence in Construction Disputes:Arbitrator Perspective..............226

Nathali e V o ser and Katherine Bell

Expert Evidence in Construction Disputes: ExpertWitness Perspective......236

Guy Elkington and Pau l T a plin

Documents in Construction Disputes........................................................246

Bartosz Kru z ˙ewski and Robert Moj

Awards ......................................................................................................257

Roger ter Haar QC, Crispi n W inser and Maurice Holmes

Part III: Select Topics on Construction Arbitration

23 24 25 26 27 28
InvestmentTreaty Arbitration in the Construction Sector...........................273

T o ny Dymond, Gavin Chesney and Laith Najjar

Construction Arbitrations in the Nuclear Sector ........................................288

Jane Davies Evans

Energy Sector Construction Disputes ........................................................301

Scott Stiegler and James L Loftis

Construction Arbitration and Concession Contracts ..................................309

Philip Dunham and José Manuel García Represa

Construction Arbitration andTurnkey Projects ..........................................320

James Doe, David Nitek and Noe Minamikata

Construction Arbitration in the Context of China’s Belt and Road Projects............................................................................................330

Aisha Nadar

Part IV: Regional Construction Arbitration

29 30 31 32 33
Construction Arbitration in Australia .........................................................345

Andrew Stephenson, Lee Carroll and Lindsay Hogan

Construction Arbitration inTurkey............................................................361

Serdar Paksoy and Simel Sarıalio^ğlu

Construction Arbitration in the MENA Region........................................373

Mohamed S Abde l W a hab

Construction Arbitration in Brazil .............................................................411

Flávio Spaccaquerche Barbosa an d T hiago Fernandes Moreira

Construction Arbitration in Mainland China and Hong Kong ...................423

W e i Sun,Adela Mao, ZhaoYingfu an d W a ng Ziyue

About the Authors...............................................................................................445 Contact Details....................................................................................................469

Introduction

Stavros Brekoulakis and David Brynmor Thomas QC¹

It is a pleasure to introduce the third edition of The Guide to Construction Arbitration.The Guide has evolved since its first edition to form, we hope, a valuable resource for clients, in-house counsel, experts and external counsel involved in construction arbitration, whether they are dealing with construction arbitration for the first time or have extensive experience in it.
The construction industry is a major contributor to economic growth worldwide. In the United Kingdom it has been estimated that every £1 investment in construction output generates £2.84 in total economic activity.²In India, the BJP, which now forms the government,proposed infrastructure spending of 100 lakh crore rupees (over US$1,300 billion) over the next five years in its 2019 manifesto.
The industry covers a wide range of different types of projects, from building offices, factories and warehouses,shopping malls,hotels and homes to major infrastructure projects that involve more complex civil engineering works such as the construction of harbours, railroads, mines, highways and bridges. Other construction projects involve specialist engineering works such as shipbuilding;bespoke plant and machinery such as turbines, generators and aircraft engines; or works that aim to support energy projects such as upstream oil and gas projects or renewables (wind, wave, solar) and nuclear plants.
These complex construction projects are rarely completed without encountering risks that lead to changes to the time and cost required for their execution.Those changes in turn give rise to disputes, the majority of which (possibly the vast majority) are submitted to alternative dispute resolution (ADR) processes and eventually arbitration.The reasons that lead construction parties to choose ADR and arbitration owe as much to the (perceived or

12
Stavros Brekoulakis is a professor and the director of the School of International Arbitration at Queen Mary University of London and an associate member of 3Verulam Buildings. David BrynmorThomas QC is a barrister at 39 Essex Chambers and visiting professor at Queen Mary University of London. Report of Economic Consultants LEK for the UK Contractors Group.

Introduction

real) inefficiencies of national courts as to the (perceived or real) advantages of out-of-court dispute resolution. For example, with a few notable exceptions such as theTechnology and Construction Court in England andWales, most national courts lack construction specialist departments or judges with construction expertise and experience.Arbitration, on the other hand,allows construction parties to appoint arbitrators with the necessary specialised knowledge and understanding of complex construction projects. Importantly, arbitration allows construction parties to ‘design and build’ (to stay in tune with the theme of The Guide to Construction Arbitration) the dispute resolution procedure in a way that addresses a number of procedural challenges in construction arbitrations, including the typically large volume of documentary evidence, the most effective use of experts to address delay and quantum, as well as complex technical issues, and programme analysis.While the use of some ADR methods such as dispute adjudication boards has spread relatively recently,³arbitration has traditionally been included as the default dispute resolution mechanism for disputes arising out of international construction contracts.⁴
A question that often arises is: what is special about international construction disputes that they require specialist arbitration knowledge? In the first place, construction projects are associated with considerably more risk than any other typical commercial transaction, both in terms of the amount of risk allocated under them and the complexity of that risk. Their nature and typically long duration lead to risks including unexpected ground and climate conditions, industrial accidents, fluctuation in the price of materials and in the value of currency, political risks (such as political riots, governmental interventions and strikes) and legal risks (such as amendments in law or failure to secure legal permits and licences).
Further,time is very often critical in construction projects.An Olympic Games stadium must be delivered before the hard deadline that is the date of the games. If a shopping mall is not ready for the commercially busy Christmas period, significant amounts may be lost in seasonal retail trade.The late delivery of a power station can disrupt the project financing used to fund it.
Moreover, arguments as to causation, especially of delay, in construction projects are typically complex. Many phases of a construction project can run concurrently, which often makes it difficult to identify the origins and causes of delay. Legal concepts such as concurrent delay, critical paths and global claims are unique to construction disputes.
Equally, the involvement of a wide number of parties with different capacities and divergent interests adds to the complexity of construction disputes.A typical construction project may involve not only an employer and a contractor, but several subcontractors, a project manager,an engineer and architect,specialist professionals such as civil or structural engineers and designers, mechanical engineers, consultants such as acoustic and energy consultants, lenders and other funders, insurers and suppliers. A seemingly limited dipute arising on one subcontract may lead to disputes under other subcontracts and the main construction contract, and may have financial and legal consequences for many of the above parties, triggering disputes under much wider documentation such as shareholder agreements, joint operating agreements, funding documents and concessions.That often

34
Dispute adjudication boards were ﬁrst introduced in FIDIC contracts (in the Orange Book) in 1995 and in ICE contracts as recently as in 2005. Arbitration has been included in FIDIC contracts since the publication of the ﬁrst FIDC contract in 1957.

Introduction

gives rise to issues about multiparty arbitration proceedings and third-party participation in arbitration proceedings.
Another important feature of construction disputes is the widespread use of standard forms,such as the FIDIC or the ICE conditions of construction contracts.Efficient dispute resolution requires familiarity and understanding of the, often nuanced, risk allocation arrangements in these standard forms.Good knowledge of construction-specific legislation is necessary too.While the resolution of most construction disputes will depend on the factual circumstances and the provisions of the contractual agreement of the parties, legal issues may often arise in relation to statutory (frequently mandatory) warranty and limitation periods for construction claims, statutory direct claims by subcontractors against the employers,⁵statutory prohibition of the pay-when-paid and pay-if-paid provisions⁶and, of course, mandatory legislation on public procurement.⁷
Finally, as already mentioned, construction disputes are technically complex, requiring efficient management of challenging evidentiary processes, including document management, expert evidence, programme analysis and quantification of damages. The evidentiary challenges in construction disputes have given rise to the use of tools, such as Scott Schedules (used to present fact intensive disputes in a more user friendly format), that are unique in construction arbitrations.⁸
It is for all these reasons that alternative dispute resolution and arbitration of construction disputes require special focus and attention, which is what The Guide to Construction

Arbitration aims to provide.

The Guide to Construction Arbitration is designed to appeal to different audiences. The authors of the various chapters are themselves market-leading experts, so it can provide a ready resource for specialist construction arbitration practitioners who already have a view of the information they seek. Beyond that, it has been compiled and written to offer practical information to practitioners who are inexperienced in international construction contracts or dispute resolution in construction disputes. For example, in-house lawyers who may be experienced in negotiating and drafting construction contracts but not in running disputes arising from them,or construction professionals who may have experience in managing construction projects but may lack experience in the conduct of construction arbitration, will find The Guide to Construction Arbitration useful. Lawyers in private practice who are familiar with arbitration, but lack experience in construction will also benefit. Last but not least, students who study construction arbitration will find it to be a helpful source of information.
While the main focus of The Guide to Construction Arbitration is the resolution, by arbitration, of disputes arising out of construction projects, Part I is devoted to important substantive aspects of international construction contracts.To understand how construction disputes are resolved in international arbitration, one has to understand how disputes arise out of a typical construction contract in the first place, and what are the substantive rights, obligations and remedies of the parties to a construction contract.

5678
For example, in France, Law No. 75-1334 of 31 December 1975 on Subcontracting. For example, in the United Kingdom with the UK Housing Grants Construction and Regeneration Act 1996. For example, EU Directive 2014/24. J. Jenkins and K. Rosenberg,‘Engineering and Construction Arbitration’, in Lew et al. (editors) Arbitration in England, Kluwer (2013).

Introduction

Thus,this book is broadly divided in four parts.Part I examines a wide range of substantive issues in construction contracts,such asThe Contract:the Foundation of Construction Projects,Bonds and Guarantees,an Introduction to the FIDIC Suite of Contracts,Allocation of Risk in Construction Contracts, Contractors’ and Employers’ Claims, Remedies and Reliefs. Chapters valuably address the quantification of delays, the role of programmes and the various methods used for the computation of costs and damages in construction arbitrations, while an entire chapter is devoted to an examination, from a comparative law perspective, of the practically critical topic of concurrent delay.
Part II then focuses on dispute resolution processes in construction disputes.The aim of this Part is to look into special features of construction arbitration,and the following chapters are included: Suitability of Arbitration Rules for Construction Disputes, Subcontracts and MultipartyArbitration in Construction Disputes,Interim Relief,including Emergency Arbitrators in Construction Arbitration, Organisation of the Proceedings in Construction Arbitrations, Documents in Construction Disputes and Awards, and the role and management of expert evidence.
Part III examines a number of select topics in international construction arbitration by reference to some key industry sectors and contract structures,including the nuclear sector, energy sector, concession contracts and turnkey projects. Part IV examines construction arbitration in specific jurisdictions of particular interest and with very active construction industries
We have taken the opportunity to add to the chapters in this third edition, to address matters identified by users of the first two editions. These include chapters examining dispute boards,ADR in construction contracts, agreements to arbitrate and interim relief in detail.There are chapters on pricing and payment, investment treaty arbitration in the construction sector, a discussion of the typical parties to a construction contract, further discussion of the organisation of expert testimony and a chapter on construction arbitration in Brazil.

Overall,the third edition of The Guide to Constructio n A rbitration builds upon the success

of the ﬁrst two editions and has been further expanded.The structure and organisation of The Guide to Construction Arbitration is broadly based on the LLM course on International Construction Contracts and Arbitration that we teach at Queen Mary University of London.The course was ﬁrst introduced by HH Humphrey Lloyd in 1987 and was taught by him for more than 20 years. Humphrey has been an exceptional source of inspiration for hundreds of students who followed his classes, and we are personally indebted to him for having conceived the course originally and for his generous assistance when he passed the course on some years ago.

We want to thank all the authors for contributing to The Guide to Constructio n A rbitration.

We are extremely fortunate that a group of distinguished practitioners and construction arbitration specialists from a wide range of jurisdictions have agreed to participate in this project.We further want to thank Gemma Chalk, BevanWoodhouse and Hannah Higgins for all their hard work in the commission, editing and production of this book.They have made our work easy. Special thanks are due to David Samuels and GAR for asking us to conceive, design and edit this book.We thoroughly enjoyed the task, and hope that the readers will ﬁnd the result to be useful and informative.

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