Arbitrating Construction Disputes – Comparing the ICC, LCIA, SIAC and SCCA Rules

Construction disputes are usually technically complex, involving multiple-parties and multiple contracts, even if they only relate to one project. The resulting disputes can combine overlapping factual, technical and legal questions with substantial documentary and expert evidence. The dispute procedure adopted may therefore have a material effect on the time and cost required to reach a decision.

Arbitration is frequently selected for construction contracts because it offers, amongst other things, procedural flexibility. The parties can choose institutional rules and, within the limits of those rules and the applicable law, adapt the process to the dispute. However, that flexibility does not operate in the same way under every set of rules. Whichever rules are chosen, the contracting parties should be sure it meets their intended needs for dispute resolution.

This article considers a number of procedural mechanisms available under some commonly used arbitral rules, being the International Chamber of Commerce (ICC) Rules 2026, the London Court of International Arbitration (LCIA) Rules 2020, the Singapore International Arbitration Centre (SIAC) Rules 2025, and the Saudi Center for Commercial Arbitration (SCCA) Rules 2023.  The SCCA rules are based primarily on the UNCITRAL Arbitration Rules. 

Can related parties be brought into one arbitration?

Construction projects commonly involve contracts between the employer, contractor, subcontractors and consultants. One event, such as defective design or delay to a critical activity, may therefore give rise to several related disputes.

Joinder allows an additional party to be added to an arbitration that has already commenced. It differs from consolidation, which combines existing arbitrations. Joinder may avoid parallel proceedings, duplicated evidence and inconsistent decisions. However, arbitration is based on consent, and procedural convenience alone cannot give a tribunal jurisdiction over another party.

Under Article 8 of the ICC Rules, a party seeking joinder must submit a Request for Joinder to the ICC Secretariat. If the request is made before any arbitrator is confirmed or appointed, the ICC Court will consider whether there is prima facie an arbitration agreement under the Rules involving the additional party.

After an arbitrator has been confirmed or appointed, the additional party must accept the constitution of the tribunal and the tribunal must approve the request. In deciding whether to do so, the tribunal considers matters including its prima facie jurisdiction, the timing of the request, possible conflicts of interest and the effect of joinder on the proceedings.

Article 22.1(x) of the LCIA Rules takes a different approach. The tribunal may join a third person where that person and the applicant have expressly consented in writing, either in the arbitration agreement or after the arbitration commenced. The consent of every existing party is not required and there is no equivalent cut-off linked to the appointment of an arbitrator.

Rule 18 of the SIAC Rules allows either a party or a non-party to apply for joinder. Before the tribunal is constituted the application is decided by the SIAC Court. After constitution, it is decided by the tribunal. In either case, joinder may be allowed where all parties agree or where the additional party is prima facie bound by the arbitration agreement.

The SIAC Rules also deal expressly with the effect of joinder on appointments. If joinder is granted before constitution, the SIAC President may revoke an appointment already made. If a joined party did not have an opportunity to participate in constituting the tribunal, it is treated as having waived that opportunity, without losing any right to challenge an arbitrator.

Under Article 12 of the SCCA Rules, the appointment of an arbitrator is an important dividing line. After that point, joinder requires the additional party to agree and accept the tribunal as constituted. Either all parties may agree, or the tribunal may permit joinder despite an existing party's objection.

In deciding whether joinder is appropriate under Article 12(2) of the SCCA Rules, the tribunal is to consider all relevant circumstances, including its prima facie jurisdiction over the additional party, the timing of the request, possible conflicts of interest and the effect on the arbitration.

The rules therefore differ in how they approach consent and timing. Under the LCIA Rules (Article 22.1(x)) express consent from the applicant and additional party is central. Under the SIAC Rules (Rule 18), joinder may instead be based on the additional party being prima facie bound by the arbitration agreement. The ICC Rules (Article 8) and the SCCA Rules (Article 12) place particular importance on whether an arbitrator has already been appointed.

Early consideration of joinder is therefore important. At the contracting stage, related contracts should, where appropriate, contain compatible arbitration agreements using the same institution and seat. Bespoke joinder or consolidation provisions may also be useful. Institutional rules cannot cure the absence of consent or fundamentally incompatible arbitration agreements.

Should the arbitration be in separate phases?

Bifurcation divides an arbitration into separate phases so that one or more issues are decided first. Common examples include jurisdiction before the merits, and liability before quantum or a discrete issue of contractual interpretation.

An early decision may dispose of claims, narrow the remaining issues, reduce the evidence required or encourage settlement. However, bifurcation may add another round of submissions, hearings and decisions. If the evidence overlaps, it may increase rather than reduce time and cost.

The ICC Rules do not contain a standalone bifurcation provision. However, the ICC's case-management guidance identifies bifurcation as a technique that may be used where it can genuinely be expected to produce a more efficient resolution. A jurisdictional or contractual issue may be suitable if it could remove a substantial part of the case. Bifurcation is less likely to assist where liability, causation and quantum depend on the same evidence.

The LCIA Rules also do not use the term bifurcation. Articles 14 and 22 of the LCIA Rules nevertheless give the tribunal broad powers to decide the stage at which issues will be determined and the order in which they will be heard. This allows the tribunal to divide the proceedings where that would provide a fair and efficient process.

Rule 32.6 of the SIAC Rules expressly allows the tribunal to direct the order of proceedings, bifurcate the case and focus the parties on issues that could dispose of all or part of it.

Rule 46 of the SIAC Rules also allows a party to seek a final and binding preliminary determination of an issue. The tribunal may allow the application where the parties agree, where it is likely to save time and costs and promote an efficient resolution, or where the circumstances otherwise justify it. A decision must ordinarily be made within 90 days of the application.

Rule 47 of the SIAC Rules is different. It provides for early dismissal where a claim or defence is manifestly without legal merit or manifestly outside the tribunal's jurisdiction. The decision must ordinarily be made within 45 days.

Article 25(3) of the SCCA Rules similarly allows the tribunal to decide preliminary issues, bifurcate proceedings and focus the parties on issues that could dispose of all or part of the case.

Article 26 of  the SCCA Rules provides a separate early-disposition procedure for issues of jurisdiction, admissibility or legal merit. An application must be made within 30 days of the relevant claim or defence and, if permitted to proceed, should ordinarily be decided within a further 30 days. Bifurcation concerns the order in which issues are heard; early disposition is an accelerated route to deciding them.

The practical question is whether the preliminary issue is genuinely separate and likely to reduce the remaining case. Bifurcation is most useful where an early decision may dispose of substantial issues and avoid documentary, factual or expert evidence. It is less likely to assist where liability, causation and quantum are closely intertwined.

All the rules give a tribunal enough flexibility to order for bifurcation if they consider it necessary, with the SIAC and the SCCA Rules explicitly referring to bifurcation as an option.

What interim or emergency measures are available?

The entire arbitration process from commencement of proceedings to final award may take a considerable time depending on the complexity of the case, a period of one to two years for a final award is not unusual. During this time there may be key issues which need to be addressed on an interim basis where the tribunal is already constituted. For example, an order for security of costs where there is concern as to the financial standing of a party or an order to preserve evidence or property. 

There may also be times where emergency relief is required, and a tribunal has not yet been constituted. For example, an order preventing the call of a bond or an order to stop or resume work. Therefore a party’s ability to ask for interim or emergency relief under institutional rules can be integral to any dispute procedure. A court with jurisdiction may also be able to provide the relief required. . 

All four arbitral rules being considered empower the tribunal to grant interim measures, once the tribunal is constituted, however the scope and mechanisms under which the tribunal has power to do so differ. 

The ICC Rules (Article 29) and SIAC Rules (Rule 45) grant broad discretion to order conservatory and interim measures. Similarly, the LCIA Rules (Article 25) and SCCA Rules (Article 28) confer powers to make interim orders although these are more prescriptive and specifically identify what orders may be made on an interim basis. All four rules allow for an application for interim measures to the relevant court without being a breach or waiver of the arbitration agreement. 

All four sets of rules provide for the appointment of an emergency arbitrator to grant urgent provisional relief before the constitution of the tribunal (ICC Rules Article 31 and Appendix IV;  LCIA Rules Article 9B; SIAC Rules Article 12.1 Schedule 1; SCCA Rules Article 7). The parties may also agree to exclude or opt out of the emergency provisions. 

In terms of thresholds which a party must demonstrate to get emergency relief, under the LCIA Rules (Article 9B), ICC Rules (Appendix IV) and the SIAC Rules (Rule 12, Schedule 1) the requirement is that the relief sought is urgent and cannot await tribunal constitution. The ICC Arbitration and ADR Commission Report on Emergency Arbitrator Proceedings 2019 provides that in practice Emergency Arbitrators apply: (i) urgency, (ii) risk of irreparable harm, (iii) prima facie case on the merits, and (iv) proportionality/balance of interests. The SCCA Rules (Article 7/Appendix III, read with Article 28) provides that harm not adequately reparable by damages must substantially outweigh the prejudice to the respondent, and there must be a reasonable possibility of success on the merits.

The amount of time it takes to get an order for interim relief can make all the difference. The ICC provides that an order should be made within 15 days from file transmission and the LCIA, SIAC and SCCA provide for 14 days (which can be extended) for an order or award.  SIAC also provides for an expedited process which provides for orders without prior notice in exceptional circumstances, which can be a significant advantage in disputes involving asset dissipation. This order must be determined with 24 hours (SIAC Rules, paragraphs 25 to 27 of Schedule 1).  

As to enforceability, the ICC is the only regime that requires the decision take the form of an order (not an award), which may create enforcement difficulties in jurisdictions that only recognise "awards". 

Whilst all four rules provide for interim and emergency relief, parties may wish to consider timeframes, enforceability and whether to opt out of any emergency arbitrator provisions when selecting the rules for a specific project. 

How is document exchange dealt with?

Given the volume and technical nature of construction documentation, document exchange/disclosure can be particularly time-consuming and expensive for parties. There may be extensive contemporaneous records essential to proving or disproving a party’s claims, including progress minutes, site diaries, email communications, programmes, drawings, invoices etc.

None of the four sets of rules impose an automatic or general duty of disclosure akin to common law litigation disclosure process. However, the rules provide a tribunal with wide ranging case management powers to conduct document exchange in light of the circumstances of the dispute.  

The LCIA Rules are the most detailed, empowering the tribunal under Article 22 to order disclosure of documents in a party's “possession, custody, or power which the Arbitral Tribunal decides to be relevant”. The ICC Rules adopt a broader formulation: Article 26(1) permits the tribunal to establish the facts of the case "by all appropriate means". This implies but does not specifically provide for document production. The SIAC Rules similarly vest the tribunal with wide case management powers under Rule 32. The SCCA Rules follow a comparable approach, granting the tribunal discretion to manage proceedings and order the parties to “produce documents, exhibits, or any other evidence” appropriate (Article 25). 

Whilst the rules do not expressly refer to the International Bar Associations Rules on Taking of Evidence in International Arbitration (the IBA Rules), in practice a tribunal may adopt the IBA Rules or principles of the rules by agreement of the parties. These rules, at Article 3, provide a framework to provide specific categories of documents which are “relevant to the case and material to its outcome”.  

It should also be noted that whilst the LCIA, SIAC and SCCA rules contain confidentially provisions applicable to any documents as part of the arbitration, the ICC rules do not contain any such obligation which leaves the matter open to party agreement, applicable law or tribunal direction. 

What expert evidence is permitted?

Expert evidence is often a key element of any party’s claim, whether it is a quantum, delay or technical expert. The strength of one party’s expert evidence could be a determinative factor in how the Tribunal understands a party’s case. 

All four sets of rules expressly empower the tribunal to appoint one or more experts to report on specific issues, subject to prior consultation with the parties.  In terms of party appointed experts, which is the more common approach in construction disputes, the LCIA Rules treat party-appointed experts as witnesses (Article 20.1) on whose evidence it may rely.  This means that the procedural requirements for written statements, oral testimony and cross-examination apply to experts. The ICC Rules (Article 26(2)), similarly confirm that the tribunal "may decide to hear witnesses, experts appointed by the parties or any other person", but without prescribing detailed procedural requirements for party-appointed expert evidence in the Rules themselves. The SCCA Rules do not have a standalone article governing party-appointed experts, though Article 25(5) confirms the tribunal's power to "determine the admissibility, relevance, materiality, and weight of the evidence". 

The SIAC Rules treat party-appointed expert evidence within the general witness provisions at Rule 40, and include, at Rule 40.5, an express acknowledgment that parties and their representatives may "assist such witness or potential witness in the preparation of a witness statement or expert report" and should "seek to ensure that … the evidence of experts reflects their genuinely held opinions”. 

In all the four rules there is an absence of detailed rules on form, content, or duties of party-appointed experts which means that the procedural framework during any arbitration will be shaped by the tribunal's case management orders, the IBA Rules (which are frequently applied by tribunals), and the parties' own agreements. When determining what expert evidence is appropriate for a particular dispute parties may want to consider the use of joint statements and concurrent expert evidence (‘hot-tubbing’) which can be of assistance in resolving competing opinions and narrowing the issues in dispute between the parties.  

Conclusion

The above shows that whilst all four sets of Rules provide a similar approach to important procedural issues, they are not identical. Parties should carefully consider which rules will be best placed to deal with the type of disputes likely to arise on the particular project being undertaken.  

Our Expertise

Charles Russell Speechlys' construction and international arbitration team regularly advises employers, contractors and consultants on the selection of institutional rules and the effective use of procedural mechanisms to manage risk and resolve multi-party disputes efficiently. If you would like to discuss how these procedural tools may apply to your project or dispute, please contact a member of our team.