Construction disputes by their very nature, lend themselves to arbitration as opposed
to other means of dispute resolution. This is because they often involve international
contracting parties, complex disputes around factual issues requiring expert
consideration (which parties often wish to keep confidential). They also invariably
involve large volumes of material and evidence (factual and expert) to make sense of
what actually happened on site.
Whilst no project party wants to end up in
arbitration, failure to put systems and
processes in place to effectively capture and
store project documentation at the outset
can lead to unnecessary delays in the
event proceedings do become a necessity.
In construction disputes a significant
amount of legal time (and therefore
expense) is often spent simply locating
and trying to understand the relevance
of key documents because of poor
document management practices
throughout the project lifecycle. This
is generally compounded by the fact
that unresolved disputes are typically
referred to arbitration at the end of a
project when key project personnel –
who often have the best understanding
of what happened on site – have moved
on to other roles.
Effective management of documentation
during project delivery can avoid this
issue, as well as
- Reduce the risk of claims being time
barred or otherwise invalidated
because of non-compliance with
contractual notification requirements.
- Dramatically cut down the legal time
involved in preparing and reviewing
documents for discovery.
This article considers some practical tips
for contractors and suppliers on how
information can be stored and managed
throughout the project delivery phase,
to ensure a smoother transition to end of
project and dispute resolution.
Capturing information to ensure parties can file, or respond to claims in a timely manner
Construction projects, particularly in
the energy and infrastructure space, can
involve remote and/or extensive sites. It
is often the case that site teams who are
performing the work and therefore aware
of what is going on in a day to day sense,
are physically separated from the team of
personnel administering the contract.
This is often the case for many energy
and infrastructure projects, for example,
in South East Asia, where a contractor
may have its contract administration
team in its head office in Singapore
or Bangkok managing its projects
throughout the region. Even on more
traditional building projects, such as
apartment tower complexes, the team
administering the contract may be based
in, and rarely leave, the site office.
The result of this physical separation
is an information disconnect between
those who know what the issues on site
are, and those who have the capacity
to progress any claims related to
those issues through the contractual
dispute resolution mechanisms.
Where applicable, this can result in
claims becoming time barred, and the
entitlement to make that claim at a later
date being lost.
It can also mean that the information
relevant to that potential claim is simply
never captured – for example, a
photograph is never taken evidencing
the issue as it existed at that point in
time, and once it is discovered that a
claim could be made, that opportunity is
lost because work has further progressed.
The key then is to make the transmittal
of information from site to those
progressing claims as quick and efficient
as possible. This could be done by
physically locating the teams together,
or where this is not possible, by creating
regular and frequent meetings/catch
ups to discuss the progress of works and
ensure that the project is being delivered
in an agile fashion.
Contractors/suppliers may also wish
to consider the use of technology to
facilitate this information flow. For
example, the use of apps which can
quickly communicate information or
the dissemination of tablet devices
to the site team to take photos which
are automatically geo-located and
can be centrally stored for use by the
It is critical to store information centrally
and logically. Without a document
storage protocol, those on site will
store information haphazardly on
personal computer drives, in hard copy
notebooks, in the same way they stored
information on other projects (which
may not be the same as others) or, in the
worst case, not at all.
Folders should be set up on a shared
drive, or project specific drive which
separate out, at least
- Claim documentation by claim number.
This is the most important of all, as it
will save the greatest amount of legal
time when drafting pleadings and
assessing the merits of various claims.
- Photographs by date (and that where
possible, photographs are taken at the
same location at regular intervals of
the project to show progress over time
in specific key areas).
- Documentation such as delivery dockets,
bills of lading etcetera are all separately
stored by supplier in date order.
- Equipment data (where relevant),
showing dates various equipment was
on site, and the locations and usage of
- Daily site diaries of key personnel,
scanned and uploaded at the end
of each week.
Transitioning information from site-based personnel to those involved in the dispute resolution phase
It may seem counter-intuitive, but
involving your legal team to help
manage the transition of information
prior to the end of the project delivery
phase can actually save time and cost in
the long run. This is because the legal
team can assist in identifying
- Key potential witnesses, and the
physical location of any information
they may hold. This means that
personal laptops, external hard drives
and hardcopy notes can be captured
for the subsequent witness statements
in the arbitration.
- Any obvious gaps in information
which may be able to be corrected
before those with the knowledge of
the project leave site. For example,
equipment logs may be able to be
obtained from suppliers prior to them
being paid at the end of the job, but
once they leave the site those records
may be lost.
The Norton Rose Fulbright solution – Deliver&Capture
Norton Rose Fulbright Deliver&Capture
Having been involved in arbitration in
the construction sector, both domestic
and international, large and small, for
many decades, our arbitration group has
seen ”the good, the bad and the ugly”
when it comes to information storage
and the impact on proceedings. This
includes information missing at the
point of arbitration, or reviewing endless
amounts of irrelevant information during
discovery. We have also seen valid claim
entitlements lost because of a failure to
comply with contractual time bars.
To overcome these issues and to
streamline project delivery, we have
partnered with a major client in the
infrastructure space and leading user
experience (UX) designers to develop
a project delivery tool utilizing the
latest technology – Deliver&Capture.
Our technology solution has three
A web-based contract manual in a userfriendly
FAQ style format and flowchart
to explain contractual entitlements
An online automated claims
management system which diarizes
claim dates, pre-populates information
and assists users in completing claims
for submission throughout the project.
To capture information from the site
team in the form of photos and basic
data, which is geo-located, and feeds
into the claim portal for submission in
the form of a claim, if relevant.
We are currently offering this project delivery
solution on large scale infrastructure
projects to both contractors and
principals internationally, but also
working with clients to develop a
solution which can be utilized on
projects of all shapes and sizes.
When it comes to construction arbitration,
at the outset of a project hoping for the
best but planning for the worst will save
participants significant time and cost
once it comes time to participate in the
arbitral process. Setting up clear
guidelines for document management
and collection of information are critical
to this process and will assist
contractors/suppliers in making and
evidencing claims in arbitration.