ORGANIZERS/ĐƠN VỊ TỔ CHỨC

SUPPORTING ORGANIZATIONS/ ĐƠN VỊ HỖ TRỢ

KỈ YẾU HỘI THẢO

CONFERENCE PROCEEDINGS

HOCHIMINH CITY INTERNATIONAL CONSTRUCTION

ARBITRATION CONFERENCE
Complex Construction Arbitration

HỘI THẢO TRỌNG TÀI XÂY DỰNG QUỐC TẾ TPHCM 2023

Hồ Chí Minh, ngày 17 tháng 4 năm 2023

Ho Chi Minh City, April 17, 2023
 HICAC 2023
HOCHIMINH CITY INTERNATIONAL CONSTRUCTION
ARBITRATION CONFERENCE
Complex Construction Arbitration

HỘI THẢO TRỌNG TÀI XÂY DỰNG QUỐC TẾ TPHCM 2023

GOLD SPONSOR/NHÀ TÀI TRỢ VÀNG

SILVER SPONSOR/NHÀ TÀI TRỢ BẠC

BRONZE SPONSORNHÀ TÀI TRỢ ĐỒNG

 SPEAKERS
DIỄN GIẢ

Prof/Giáo sư. Ms/Bà. Ms/Bà. Mr/Ông. Mr/Ông. Mr/Ông.

Douglas Jones AO Trinh Nguyen Amanda Lees Peter Scott Caldwell Tan Cheng Hye Johnny Abhinav Bhushan
Nguyễn Thị Phương Trinh

Mr/Ông. Mr/Ông. Mr/Ông. Mr/Ông. Mr/Ông. Mr/Ông.

Simon Elliot Suraj Sajnani David Lockwood Kelvin Aw Tony Matthew Wills
Nguyễn Trung Nam

Mr/PGS.TS. Mr/Ông. Mr/Ông. Ms/Bà. Ms/Bà. Ms/Bà.

Viet Dzung Tran Paul Menzies Maximilian Benz Nguyen Thi Lan Huong Heather Yee Jing Wah Duong Hoang
Trần Việt Dũng Nguyễn Thị Lan Hương Hoàng Trần Thùy Dương

Ms/Bà. Mr/Ông. Ms/Bà. Mr/Ông. Mr/Ông. Mr/Ông.

Anita Natalia Pardeep Khosa SeungMin Lee K. Luan Tran Paul Sandosham Tejus Chauhan
Trần Kinh Luân

Mr/Ông. Ms/Bà. Mr/Ông. Mr/Ông. Mr/Ông. Ms/Bà.

Nguyen Manh Dzung Lynette Chew Minh Le Devathas Satianathan Risheq Hamzah Earl Rivera-Dolera
Nguyễn Mạnh Dũng Lê Công Minh

Mr/Ông. Dr/TS. Ms/Bà. Mr/Ông. Ms/Bà. Mr/Ông.

Tom Taylor Nguyen Thi Hoa/Nguyễn Thị Hoa Nhu-Hoang Tran Thang Daniel Waldek Minh Nguyen/Nguyễn Thị Thanh Minh Nguyen Do
Trần Thắng Như Hoàng Khôi Nguyên

Mr/Ông. Ms/Bà. Ms/Bà. Mr/Ông. Mr/Ông. Mr/Ông.

Sangyub (Sean) Lee Hang Vu Thi Fanita Math Albert Zaw Min Net Le/Lê Nết Logan Leung
Vũ Thị Hằng
 AGENDA

MORNING General Session (Ballroom) 8:00 am -12:00 am

08:00-08:30 Opening speeches

08:30-09:00 Keynote speech Prof. Douglas Jones AO

Independent International Arbitrator

09:00-10:30 Panel 1: Complex construction arbitration - stories from senior arbitrators

Moderator: Ms. Amanda Lees Mr. Peter Scott Caldwell Mr. Tan Cheng Hye Johnny
Ms. Trinh Nguyen International Arbitration Partner at Director of Caldwell Ltd Independent Arbitrator
Founding partner of TNP Law King & Wood Mallesons SIMI & SMC Accredited Mediator
Vice chairperson of SCLVN Adjudicator

10:50-12:00 Panel 2: ICC Arbitration and ADR Commission Report on Construction

Industry Arbitrations
Moderator:
Mr. Abhinav Bhushan
International Arbitrator Mr. Nguyen Manh Dzung Ms. Lynette Chew Mr. Devathas Satianathan
Member & Chief Executive for ISenior Partner Partner and Co-Head of Infrastructure Partner at Rajah & Tann Singapore LLP
Asia at 39 Essex Chambers at Dzungsrt & Associates LLC Construction and Energy Disputes
former Director for South Asia CMS Singapore
at ICC International Court of Arbitration

AFTERNOON Ballroom 1
Section A : Expert Witness In Construction Arbitration
13:30-15:00 Panel A1: Role of Expert Witness in Construction Arbitration

Moderator: Mr. Risheq Hamzah Mr. Simon Elliot Mr. Suraj Sajnani
Mr. Minh Le Senior Director of Kroll Partner at Three Crowns LLP Senior Associate, King & Wood Mallesons
Associate Director of J.S. Held LLC

15:30-17:00 Panel A2: Effective working with Expert Witness in Construction Arbitration

Moderator: Mr. Kelvin Aw Mr. Nguyen Trung Nam (Tony) Mr. Matthew Wills
Mr. David Lockwood Partner and Co-Head of Infrastructure Founder, Sr. Partner of EPLegal Senior Managing Director APAC
Managing Director - South-East Asia Construction and Energy Disputes J.S. Held LLC
at Hanscomb Intercontinental CMS Singapore

Mr. Tom Taylor

Managing Director of Expert Services
at Socotec

AFTERNOON Ballroom 2

Section B: Digital Technology In International Construction Arbitration

13:30-15:00 Panel B1: Technology supporting Parties and Arbitrators in Construction Arbitration

Moderator: Ms. Nhu-Hoang Tran Thang Mr. Daniel Waldek Ms. Minh Nguyen
Dr. Nguyen Thi Hoa Counsel at Peter & Kim Partner at Herbert Smith Special Counsel and Head of
University Lecturer at Freehills Singapore Dispute Resolution Practice of
International Law Faculty, HCMUL ACSV Legal

15:30-17:00 Panel B2: Integrating BIM, Laser Scanning and other ICT tools in prevention
and settlement of construction disputes
Moderator: Ms. Nguyen Thi Lan Huong
Mr. Paul Menzies Mr. Maximilian Benz
Assoc. Prof. Viet Dzung Tran Deputy Head of the Department of
General Director of GeoInstinct Associate Director at HKA
International Trade Law
Dean, International Law Faculty Vietnam Co. Ltd.
Faculty of International Law
HCMUL
Ho Chi Minh City University of Law
 AFTERNOON At Room Tan Thuan - Hiep Phuoc

Section C : Arbitration Rules Of Regional Institutions And Complex Arbitration

In Construction Industry

13:30-15:00 Panel C1: Complex multi-party multi-contract construction arbitration

and Arbitration Rules

Moderator: Ms. Heather Yee Jing Wah Ms. Duong Hoang Mr. Sangyub (Sean) Lee
Ms. Amanda Lees Assistant Director of the Deputy Counsel at Singapore Case Counsel
International Arbitration Partner Asian International Arbitration Centre International Arbitration Centre (SIAC) KCAB International
(AIAC, Malaysia)
at King & Wood Mallesons

15:30-17:00 Panel C2: Experiences from Secretariat of regional institutions in dealing with
complex construction arbitration
Moderator:
Ms. Hang Vu Thi Ms. Fanita Math Mr. Albert Zaw Min (TBC)
Mr. Tan Cheng Hye Johnny
Deputy Director of the Secretariat cum Secretary General of National President of Myanmar International
Independent Arbitrator
Head of International Cooperation Commercial Arbitration Centre Arbitration Centre (MIAC)
SIMI & SMC Accredited Mediator
Vietnam International (NCAC, Kingdom of Cambodia)
Adjudicator
Arbitration Centre (VIAC)

AFTERNOON At Room Khanh Hoi - Nha Rong

Section D : Conduct Of Proceedings And Case Management For Complex

Construction Arbitration

13:30-15:00 Panel D1: Case strategy in construction arbitration for claimants and respondents

Moderator: Ms. Anita Natalia Mr. Pardeep Khosa

Mr. Net Le Senior Associate at Herbert Partner at Morgan, Lewis & Bockius LLP
Partner at LNT & Partners Smith Freehills

Ms. SeungMin Lee Mr. K. Luan Tran

Partner at Peter & Kim Partner at King & Spalding LLP

15:30-17:00 Panel D2: Controlling time and costs in construction arbitration

Moderator: Mr. Tejus Chauhan Ms. Earl Rivera-Dolera

Mr. Paul Sandosham Director, South Asia Head of International Arbitration
Partner, Clifford Chance Asia ICC Arbitration & ADR Frasers Law Company
ICC International Court of Arbitration

Mr. Nguyen Do Mr. Logan Leung

Partner at YKVN Deputy Managing Partner at
Rajan & Tann LCT Lawyers

Information here
https://scl.org.vn/en/events/hcm2304hicac/

Scan code QR
 NỘI DUNG HỘI THẢO

BUỔI SÁNG PHIÊN CHUNG 8:00 - 12:00

08:00-08:30 Phát biểu khai mạc

08:30-09:00 Bài thuyết trình chính Giáo sư Douglas Jones AO

Trọng tài viên quốc tế độc lập

Phiên 1: Những vụ trọng tài xây dựng phức tạp - Câu chuyện của các trọng tài viên
09:00-10:30
giàu kinh nghiệm

Điều phối viên: Bà. Amanda Lees Ông. Peter Scott Caldwell Ông. Tan Cheng Hye Johnny
Bà. Nguyễn Thị Phương Trinh Trọng tài Quốc tế Giám đốc Caldwell Trọng tài viên độc lập
Thành viên sáng lập Công ty luật TNP Luật sư thành viên tại Nguyên Tổng thư ký HKIAC Nguyên Phó Chủ tịch Viện Kiến trúc Singapore
King & Wood Mallesons Nguyên Chủ tịch Hội Pháp luật Xây dựng Nguyên Chủ tịch Viện Trọng tài Singapore
Phó chủ tịch SCLVN
Hồng Kông

10:50-12:00 Phiên 2: Báo cáo về trọng tài trong lĩnh vực xây dựng của Ủy ban ICC về
Trọng tài và các phương thức giải quyết tranh chấp thay thế
Điều phối viên: Ông. Nguyễn Mạnh Dũng Bà. Lynette Chew Ông. Devathas Satianathan
Ông. Abhinav Bhushan Luật sư cấp cao Thành viên và Đồng trưởng bộ phận Luật sư thành viên Rajah & Tann
Trọng tài viên Quốc tế Công ty Luật TNHH Tư vấn Độc Lập Xây dựng cơ sở hạ tầng và Tranh chấp Singapore LLP
Thành viên & Giám đốc điều hành (Dzungsrt & Associates LLC) năng lượng CMS Singapore
khu vực Châu Á tại 39 Essex Chambers
Nguyên Giám đốc khu vực Nam Á
của Tòa Trọng tài Quốc tế ICC

BUỔI CHIỀU KHÁN PHÒNG 1

Phần A: Nhân chứng Chuyên gia trong Trọng tài Xây dựng

13:30-15:00 Phiên A1: Vai trò của Nhân chứng chuyên gia trong Trọng tài Xây dựng

Điều phối viên: Ông. Risheq Hamzah Ông. Simon Elliot Ông. Suraj Sajnani
Ông. Lê Công Minh Giám đốc cấp cao tại Kroll Luật sư thành viên tại Luật sư cộng sự cấp cao
Phó Trưởng Bộ phận dịch vụ Three Crowns tại King & Wood Mallesons
Tư vấn Xây dựng
Công ty TNHH J.S. Held

Phiên A2: Làm việc hiệu quả với Nhân chứng Chuyên gia trong
15:30-17:00 Trọng tài Xây dựng

Điều phối viên: Ông. Kelvin Aw Ông. Nguyen Trung Nam Ông. Matthew Wills
Ông. David Lockwood Thành viên và Đồng trưởng bộ phận Người sáng lập Giám đốc điều hành cấp cao
Giám đốc điều hành Xây dựng cơ sở hạ tầng và Tranh chấp Thành viên cấp cao tại khu vực châu Á- Thái Bình Dương
chi nhánh Đông Nam Á năng lượng, CMS Singapore Công ty Luật EPLegal tại J.S Held
tại Hanscomb Intercontinental

Ông. Tom Taylor

Giám đốc điều hành
Dịch vụ nhân chứng chuyên gia
Công ty Socotec

BUỔI CHIỀU KHÁN PHÒNG 2

Phần B: Công nghệ hỗ trợ các Bên và Trọng tài viên trong Trọng tài Xây dựng

13:30-15:00 Phiên B1: Công nghệ hỗ trợ các Bên và Trọng tài viên trong Trọng tài Xây dựng

Điều phối viên: Bà. Trần Thắng Như Hoàng Ông. Daniel Waldek Bà. Nguyễn Thị Thanh Minh
TS. Nguyễn Thị Hoa Luật sư tại Peter & Kim Luật sư thành viên tại Cố vấn cấp cao
Giảng viên tại Khoa Luật Quốc tế Herbert Smith Freehills Singapore Trưởng bộ phận Giải quyết tranh chấp
Trường Đại học Luật Tp. Hồ Chí Minh của ACSV Legal Việt Nam

15:30-17:00 Phiên B2: Tích hợp BIM, Laser Scanning và các công cụ ICT khác trong
ngăn chặn và giải quyết tranh chấp xây dựng
Điều phối viên: Ông. Paul Menzies Ông. Maximilian Benz Bà. Nguyễn Thị Lan Hương
PGS.TS. Trần Việt Dũng Tổng Giám đốc tại Phó giám đốc HKA Phó Trưởng Bộ môn Luật Thương mại Quốc tế
Trưởng Khoa Luật Quốc tế GeoInstinct Việt Nam Khoa Luật Quốc tế
Trường Đại học Luật Tp. Hồ Chí Minh Đại học Luật TP. Hồ Chí Minh
 BUỔI CHIỀU TẠI PHÒNG TÂN THUẬN - HIỆP PHƯỚC

Phần C: Các quy tắc trọng tài trong khu vực và việc áp dụng vào các vụ
trọng tài xây dựng phức tạp
Phiên C1: Các Quy tắc trọng tài khu vực áp dụng trong các Tranh chấp
13:30-15:00
Xây dựng nhiều bên nhiều hợp đồng

Điều phối viên: Bà. Heather Yee Jing Wah Bà. Hoàng Trần Thùy Dương Ông. Sangyub (Sean) Lee
Bà. Amanda Lees Trợ lý điều hành Thành viên Ban Thư ký Phó Giám đốc KCAB International
Trọng tài Quốc tế Trung tâm Trọng tài Quốc tế Châu Á Trung tâm Trọng tài Quốc tế Bộ phận quốc tế thuộc Trung tâm
Luật sư thành viên tại (AIAC, Malaysia) Singapore (SIAC) Trọng tài Thương mại Hàn Quốc (KCAB)
King & Wood Mallesons

Phiên C2: Kinh nghiệm từ Ban Thư ký của các trung tâm trọng tài trong
15:30-17:00
khu vực khi giải quyết các vụ việc trọng tài phức tạp về xây dựng

Điều phối viên: Bà. Vũ Thị Hằng Bà. Fanita Math Ông. Albert Zaw Min
Ông. Tan Cheng Hye Johnny Phó Trưởng Ban Thư ký Tổng Thư ký của Trung tâm Chủ tịch Trung tâm Trọng tài
Trọng tài viên độc lập kiêm Trưởng phòng Hợp tác quốc tế, Trọng tài Thương mại Quốc gia Quốc tế Myanmar (MIAC)
Nguyên Phó Chủ tịch Viện Kiến trúc Singapore Trung tâm Trọng tài Quốc tế Việt Nam (NCAC, Vương quốc Campuchia)
Nguyên Chủ tịch Viện Trọng tài Singapore (VIAC)

BUỔI CHIỀU TẠI PHÒNG KHÁNH HỘI - NHÀ RỒNG

Phần D: Quản lý vụ việc trọng tài xây dựng phức tạp

Phiên D1: Chiến lược dành cho Nguyên đơn và Bị đơn đối với
13:30-15:00
vụ việc trọng tài về xây dựng

Điều phối viên:

Ông. Lê Nết Bà. Anita Natalia Ông. Pardeep Khosa
Luật sư Cộng sự Cấp cao Luật sư Thành viên của Morgan
Luật sư Thành viên của
của Herbert Smith Freehills Lewis & Bockius LLP
LNT & Partners

Bà. SeungMin Lee Ông. Trần Kinh Luân

Luật sư Thành viên của Peter & Kim Luật sư Thành viên
King & Spalding LLP

15:30-17:00 Phiên D2: Điều tiết thời gian và chi phí trong trọng tài về xây dựng

Điều phối viên: Ông. Tejus Chauhan Bà. Earl Rivera-Dolera

Ông. Paul Sandosham Giám đốc khu vực Nam Á của Trưởng ban Trọng tài Quốc tế
Luật sư Điều hành của Tòa Trọng tài Quốc tế ICC của Công ty Frasers Law
Clifford Chance Asia

Ông. Khôi Nguyên Ông. Logan Leung

Luật sư Thành viên của YKVN Luật sư thành viên
Phó trưởng điều hành của
Rajan & Tann LCT Lawyers

Thông tin tại

https://scl.org.vn/en/events/hcm2304hicac/

Quét mã QR

03
 TABLE OF CONTENTS
MORNING General Session (Ballroom)
Keynote speech
COMPLEX CONSTRUCTION ARBITRATION
Prof. Douglas Jones AO
Independent International Arbitrator 03
Panel 1: Complex construction arbitration - stories from senior arbitrators
COMPLEX CONSTRUCTION ARBITRATION – 6 TOPICS FOR DISCUSSION Mr. Peter Scott Caldwell
Director of Caldwell Ltd
43
AVOIDING AND RESOLVING COMPLEX CONSTRUCTION DISPUTES & Mr. Tan Cheng Hye Johnny
ROLE OF CONSTRUCTION PROFESSIONALS IN COMPLEX Independent Arbitrator
SIMI & SMC Accredited Mediator
55
CONSTRUCTION DISPUTES Adjudicator

Panel 2: ICC Arbitration and ADR Commission Report on Construction Industry Arbitrations
ADR FOR PREVENTION, MANAGEMENT AND SETTLEMENT Mr. Nguyen Manh Dzung

OF DISPUTES ON CONSTRUCTION INDUSTRY IN VIETNAM

ISenior Partner
at Dzungsrt & Associates LLC
67
ICC COMMISSION REPORT CONSTRUCTION INDUSTRY ARBITRATIONS Ms. Lynette Chew
RECOMMENDED TOOLS AND TECHNIQUES FOR EFFECTIVE Partner and Co-Head of Infrastructure
Construction and Energy Disputes
74
MANAGEMENT CMS Singapore

ICC ARBITRATION AND COMMISSION REPORT CONSTRUCTION Mr. Devathas Satianathan

INDUSTRY ARBITRATIONS RECOMMENDED TOOLS AND TECHNIQUES Partner at Rajah & Tann Singapore LLP 80
FOR EFFECTIVE MANAGEMENT (2)

AFTERNOON Ballroom 1
Section A : Expert Witness In Construction Arbitration
Panel A1: Role of Expert Witness in Construction Arbitration
Mr. Risheq Hamzah
DOS AND DON’TS AS AN EXPERT WITNESS Senior Director of Kroll 88
Mr. Simon Elliot
LEVERAGING THE EXPERT’S ROLE IN CROSS-EXAMINATION Partner at Three Crowns LLP 93
EXPERT WITNESSES: WHO, WHAT, WHY, HOW? Mr. Suraj Sajnani
Senior Associate, King & Wood Mallesons 99
Panel A2: Effective working with Expert Witness in Construction Arbitration
Mr. Kelvin Aw
EFFECTIVE WORKING WITH EXPERT WITNESS IN Partner and Co-Head of Infrastructure 110
CONSTRUCTION ARBITRATION Construction and Energy Disputes
CMS Singapore

LOCAL PERSPECTIVE ON WORKING WITH EXPERTS Mr. Nguyen Trung Nam (Tony) 115
Founder, Sr. Partner of EPLegal

EFFECTIVE WORKING WITH EXPERT WITNESS IN Mr. Matthew Wills

CONSTRUCTION ARBITRATION Senior Managing Director APAC 119
J.S. Held LLC

EFFECTIVE WORKING WITH EXPERT WITNESS IN Mr. Tom Taylor

CONSTRUCTION ARBITRATION Managing Director of Expert Services
at Socotec
125

AFTERNOON Ballroom 2
Section B: Digital Technology In International Construction Arbitration
Panel B1: Technology supporting Parties and Arbitrators in Construction Arbitration
Ms. Nhu-Hoang Tran Thang
TECHNOLOGY IN CONSTRUCTION ARBITRATION Counsel at Peter & Kim 136
– THE ARBITRATOR’S PERSPECTIVE Mr. Daniel Waldek

142
Partner at Herbert Smith Freehills
LOCAL PERSPECTIVE ON WORKING WITH EXPERTS Singapore

Ms. Minh Nguyen

EMPLOYMENT OF TECHNOLOGIES IN CONSTRUCTION
148
Special Counsel and Head of
ARBITRATION FROM THE PARTIES’ PERSPECTIVE Dispute Resolution Practice of
ACSV Legal

Panel B2: Integrating BIM, Laser Scanning and other ICT tools in prevention
and settlement of construction disputes
Mr. Paul Menzies
REALITY CAPTURE FOR LAWYERS OR HOW I LEARNED TO STOP General Director of GeoInstinct 156
WORRYING AND LOVE LASER SCANNING Vietnam Co. Ltd.

BUILDING INFORMATION MODELLING (BIM)

AND DISPUTE RESOLUTION
Mr. Maximilian Benz
Associate Director at HKA
171
ADMISSIBILITY AND ASSESSMENT OF ELECTRONIC EVIDENCE IN Ms. Nguyen Thi Lan Huong
CONSTRUCTION ARBITRATION PROCEEDINGS – Deputy Head of the Department of 184
International Trade Law
AN ANALYSIS FROM VIETNAMESE LAW PERSPECTIVE Faculty of International Law
Ho Chi Minh City University of Law
AFTERNOON At Room Tan Thuan - Hiep Phuoc
Section C : Arbitration Rules Of Regional Institutions And Complex Arbitration
In Construction Industry
Panel C1: Complex multi-party multi-contract construction arbitration and Arbitration Rules
COMPLEX MULTI-PARTY Ms. Heather Yee Jing Wah

193
Assistant Director of the
MULTI-CONTRACT CONSTRUCTION ARBITRATION AND Asian International Arbitration Centre
(AIAC, Malaysia)
ARBITRATION RULES
Ms. Duong Hoang
COMPLEX MULTI-PARTY MULTI-CONTRACT CONSTRUCTION Deputy Counsel at Singapore

ARBITRATION UNDER SIAC RULES

International Arbitration Centre (SIAC) 209
Mr. Sangyub (Sean) Lee
HOW TO HANDLE COMPLEX CONSTRUCTION ARBITRATION VIA Case Counsel
KCAB RULES KCAB International
225
Panel C2: Experiences from Secretariat of regional institutions in dealing with complex
construction arbitration Ms. Hang Vu Thi

DEALING WITH COMPLEX CONSTRUCTION DISPUTES - Deputy Director of the Secretariat

cum Head of International 241
OBSERVATIONS FROM VIAC’S PRACTICE Cooperation Vietnam International
Arbitration Centre (VIAC)
NCAC’S EXPERIENCE IN DEALING WITH COMPLEX CONSTRUCTION
ARBITRATION
Ms. Fanita Math
Secretary General of National
247
Commercial Arbitration Centre
EXPERIENCES FROM SECRETARIAT OF REGIONAL INSTITUTIONS IN (NCAC, Kingdom of Cambodia)

DEALING WITH COMPLEX CONSTRUCTION ARBITRATION Mr. Albert Zaw Min (TBC)
President of Myanmar International
255
Arbitration Centre (MIAC)

AFTERNOON At Room Khanh Hoi - Nha Rong

Section D : Conduct Of Proceedings And Case Management For Complex
Construction Arbitration
Panel D1: Case strategy in construction arbitration for claimants and respondents
CASE STRATEGY FROM ARBITRATOR’S VIEWPOINT Mr. Net Le
Partner at LNT & Partners 268
CASE STRATEGY IN CONSTRUCTION ARBITRATION – ARBITRATOR’S Mr. Pardeep Khosa

PERSPECTIVE
Partner at Morgan, Lewis & Bockius LLP 273
TO START OR NOT TO START: Ms. SeungMin Lee
277
Partner at Peter & Kim
WHAT IS THE RIGHT STRATEGY FOR CLAIMANT
ROADMAP TO VICTORY FOR PMU SOME Ông. Trần Kinh Luân

PRACTICAL TIPS
Luật sư Thành viên 281
King & Spalding LLP

Panel D2: Controlling time and costs in construction arbitration

MEASURES INTRODUCED BY ICC TO CONTROL TIME AND COSTS FOR
Mr. Tejus Chauhan
Director, South Asia 291
PARTIES IN ARBITRATIONS ICC Arbitration & ADR
ICC International Court of Arbitration

COST – SAVING STEPS:

Ms. Earl Rivera-Dolera
A)BEFORE ANY DISPUTE IS TRIGGERED; Head of International Arbitration 299
B)POST-DISPUTE BUT BEFORE ARBITRATION IS COMMENCED Frasers Law Company

TIME & COSTS SAVING IN CONSTRUCTION ARBITRATION IN VIETNAM: Mr. Nguyen Do

Partner at YKVN
308
CLAIMANT PERSPECTIVES
Mr. Logan Leung
TIME & COSTS SAVING IN CONSTRUCTION ARBITRATION IN VIETNAM:
CLAIMANT PERSPECTIVES
Deputy Managing Partner at 313
Rajan & Tann LCT Lawyers

Information here
https://scl.org.vn/en/events/hcm2304hicac/

Scan code QR
PHIÊN TOÀN THỂ (HỘI TRƯỜNG)
GENERAL SESSION (BALLROOM)

1
BÀI THUYẾT TRÌNH CHÍNH
KEYNOTE SPEECH

2
 COMPLEX CONSTRUCTION ARBITRATION

Prof. Douglas Jones AO

Independent International Arbitrator

Doug Jones AO is a leading independent international commercial and investor-

state arbitrator with over 40 years’ prior experience as an international transactional and
disputes project lawyer. Doug was appointed as an International Judge of Singapore
International Commercial Court in 2019.
He has been involved in over 150 arbitrations which include construction,
infrastructure, energy, commodities, intellectual property, joint venture, and investor-
state disputes spanning over 30 jurisdictions around the world. He has extensive
experience as arbitrator under the ICC, LCIA, AAA, ICDR, KLRCA, SIAC, DIAC,
ACICA, Resolution Institute, AMINZ, European Development Fund Arbitration and
Conciliation Rules, as well as the ICSID and UNCITRAL Rules, in disputes of values
exceeding some billions $US.
Doug has extensive experience as a construction and major projects lawyer,
acting for owners (both government and private sector), financiers, contractors,
consultants and subcontractors, Doug has advised extensively on project structuring and
financing, contract drafting and advice during project implementation and dispute
resolution for major infrastructure matters, including Department of Defence facilities
and equipment acquisitions, airports, ports, roads and rail projects throughout Australia,
New Zealand, Europe, Asia, the Middle East and USA.

3
Introduction
Nature of Complex Construction Disputes and Multi-Party Proceedings
Document Disclosure in Complex Construction Arbitration
Witness Statements
Benefits
Drawbacks
Expert Evidence in Complex Construction Arbitration
Kind of Experts
Expert Discipline
Advisors v Witnesses
Party- and Tribunal-Appointment
Party-Appointed Expert
Bias
Use of Evidence
Tribunal-Appointed Experts
Managing Party-Appointed Experts
Early Stage Proactivity
Tribunal Access to Experts Post-Hearing
The Effects of Chess Clock Procedure Upon Arbitral Hearings
Background
What is it
Benefits
Criticisms
Pleadings & Memorials Approaches
Singapore International Commercial Court
Conclusion

4
 Introduction
To mention construction arbitration is to immediately invoke the complexity
which comes with construction disputes. They come in many forms from claims for
additional payment by contractors on varying bases, to claims by owners and others in
respect of defective performance by contractors and consultants of construction and
design work. But whatever might be the character of the claim made, it will inevitably
have degrees of complexity about it that exceed those aspects of difficulty often
encountered in other types of arbitration. Indeed, it is fair to say that a significant number
of my colleagues who act as arbitrators in international arbitration are profoundly
disinterested in adjudicating construction disputes because of their perceived
complexity. As a construction lawyer, involved in both the transactional and dispute side
of construction activity for many years, that complexity, to me, has been a challenge and
an opportunity, rather than a characteristic which would discourage involvement as an
arbitrator in these disputes. It is probably fair to say that when I first became interested
in practicing as counsel in international construction disputes, it was not a terribly
popular area of legal practice. And although its unpopularity continues in some quarters,
it is now a thriving area of legal activity in which many seek to participate. The key to
embracing the complexity of any construction dispute is to break it down into the
component parts which can be used to manage and handle that complexity.
This conference examines a number of areas in which tools are deployed to make
the construction dispute process manageable. Thus an overview of techniques which the
author has deployed as an arbitrator in international construction disputes may serve to
frame the following sessions.
Firstly though, let us identify why it is that construction disputes are complex.
The first characteristic which does not always accompany other types of international
disputes is the degree of documentation, all now largely electronic, which goes to
contribute to the successful design, planning and delivery of a construction project.
Mastering the electronic exchanges that occur between the parties to a construction
process is a key aspect of managing this aspect of complexity.
Secondly, another area of significant complexity are technical issues associated
with many of the disputes. They are claims for delay, disruption, additional payment for
varied work, the losses arising from defective design and work and delayed provision
of construction services. Dealing with those issues involves an interaction with the
arbitral panel, the parties and experts who can be of critical assistance in managing the
process. Let us look at some aspects of these issues.
The first and key overriding issue is the need, in order to manage any particular
construction dispute, to be proactive in designing the process of the arbitration and
dealing with the parties throughout the leadup to the inevitable evidentiary hearing. The
ICC and ADR commission report on managing construction disputes provides a useful
summary of the sort of issues that need to be dealt, but inevitably, the devil is in the
detail, and discussing some particular aspects of the issues identified in that report will
be useful to assist with a discussion of the issues, the subject of this conference.

5
 Nature of Complex Construction Disputes and Multi-Party Proceedings
There has been a clear transition away from simple construction contracts,1
involving two parties, due to the birth of specialisation, with owners relying on
numerous specialists to oversee individual components of a broader project, in lieu of
one master builder. This underlines the new breed of modern construction projects,
commonly associated with a complex entanglement of contracts and subcontracts. As
contractors are often unable to themselves undertake the entirety of the project,
subcontractors are increasingly relied upon to carry out specific tasks. Furthermore,
volatile economic, political and climatic conditions exacerbate the levels of risk
associated with construction disputes, thereby necessitating the employment of insurers
and external financiers.
In totality, a standard construction project unsurprisingly involves numerous
participants, ranging from subcontractors, financiers and insurers, to suppliers,
architects, engineers, alongside the employer and contractor. The ICC estimated that
close to 50% of new cases involve three or more parties, with over 20% involving over
five parties.2 Consequently, construction disputes stemming from interrelated contracts
become more challenging to resolve.
An associated phenomenon is the ‘megaproject’, referring to large-scale, costly,
and complex infrastructure projects, involving multiple private and public stakeholders.3
As a result, construction projects will likely increase in complexity, whilst
simultaneously incorporating new technologies in project planning and management.
Indeed, this has reinforced the requirement for effective document management
within construction disputes. Construction and infrastructure disputes are commonly
faced with the key issue of navigating technically complex facts of considerable volume.
The sheer magnitude of construction disputes, coupled with the inherently intricate and
specialised factual matrices, distinguish construction disputes from all other matters.
Efficiently managing the evidence associated with these technical issues presents a
significant challenge for those involved in complex construction arbitration. The sheer
volume of documentary evidence tied to this industry brings a certain level of notoriety.
Construction disputes have previously involved mountains (now terabytes) of material,
especially when large-scale projects span across years from their conception to
completion.
Consequently, incurring substantially costs is unavoidable for parties, who must
wade through the data relevant to the dispute, consisting of material accumulated across
the life span of a project. This underlines the challenge related to managing the necessary
data to fully understand the relevant facts of a construction dispute. In an arbitration
over which the author presided, involving the construction of an oil and gas platform,
the claimant filed 126 document requests, with the majority of documents sought
exceeding 1,000 pages in length. This experience in dealing with this volume of

1
Aisha Nadar, “The Contract: The Foundation of Construction Projects”, in Global Arbitration Review: The
Guide to Construction Arbitration, ed. Stavros and Brekoulakis and David Brynmor (London: Law Business
Research, 2017) 7.
2
“Full 2016 ICC Dispute Resolution Statistics published in Court Bulletin”, International Chamber of
Commerce, accessed 3 January 2019, https://iccwbo.org/media-wall/news-speeches/full-2016-icc-dispute-
resolution-statistics-published-court-bulletin.
3
Bent Flyvbjerg, “What You Should Know about Megaprojects and Why: An Overview”, Project Management
Journal, vol. 45, no. 2 (April – May 2014) 6-19.

6
documents is not unique, as arbitral tribunals may commonly receive “thousands,
hundreds of thousands and sometimes millions of pages of documents”.4
The factual matrix of each matter is rarely a simple affair, usually needing to be
illuminated with the assistance of expert evidence. This has fuelled the characterisation
of expert evidence as an indispensable cog within the inner workings of complex
construction disputes. Relevant and trustworthy expert testimony offers useful insight
which may support a party’s case, whilst simultaneously deciphering and decoding
technical evidence for the tribunal. However, this reliance upon expert evidence has
created substantial issues surrounding credibility and delay and increased expense of
proceedings, as will be further discussed below.

Document Disclosure in Complex Construction Arbitration

Complex construction arbitration inevitably presents the issue of document
disclosure, which has proved to be an ongoing challenge. Whilst disclosure is practically
limited in domestic civil law systems, the common law pre-trial process, places
importance on disclosure (with North American domestic arbitrations typically
including depositions, uncommon in international construction arbitration). In response,
the international arbitral community has created a balance between the civil law and
common law domestic disclosure traditions. The IBA Rules,5 a frequent source of
reference, has established an approach to disclosure which seeks to strike a balance
between the common and civil law perspectives.
The common law notion of disclosure has been openly and proactively embraced
by civil lawyers in international commercial arbitration. However, this enthusiasm does
not help decide how to efficiently manage the disclosure process. Redfern Schedules are
considered useful in refining disputes over disclosure, as it compels parties to clarify
what they are seeking and why. However, multiple arbitrators and junior lawyers
previously familiar with this approach to dealing with disputed disclosure issues,
consider it a nightmare. Tribunals frequently have inadequate information to make
informed rulings when requests are made. At this stage, the tribunal’s knowledge is
usually confined to contentions raised in the parties’ statements or in the Redfern
Schedule, though this may be more formulaic than useful. Often this does not assist in
understanding a disputed disclosure’s materiality and relevance, which is paramount to
applying the test under the IBA Rules.
Of assistance can be short, focused hearings or teleconferences, where counsel
may explain key issues of principle underlying their disputed requests. Lead counsel
may further elaborate upon these requests, including the reasons underpinning the
parties’ dispute as to their production. This assists in clarifying issues, eliminating
irrelevant requests and highlights methods to address concerns relating to production.
This allows the tribunal to rule on issues of principle, subsequently minimising large
areas of disputed requests. The presence of experts during this hearing may assist
further, as many requests for disclosure are driven by them. The presence of experts

4
Michael Schneider, “The Paper Tsunami in International Arbitration Problems, Risks for the Arbitrators’
Decision Making and Possible Solutions”, in Written Evidence and Discovery in International Arbitration, ed.
Teresa Giovannini and Alexis Mourre, ICC Institute of World Business Law 6 (2009).
5
International Bar Association, IBA Rules on the Taking of Evidence in International Arbitration (London: IBA,
2010) [IBA Rules].

7
assists by them explaining their needs for production in a more proportionate and
focused manner than would otherwise be the case.
Therefore, the tribunal must actively engage with document production,
particularly in complex construction arbitrations, and parties must be responsible in
limiting document requests to necessary information, objectives which may only be
effectively reached through procedural clarity and proactive case management.

Witness Statements
Complex construction arbitral matters incorporate witness statements as a
fundamental component of arbitral procedure. Broadly, witness statements form a
cornerstone of international commercial arbitration. Previously used by common law
practitioners in domestic commercial courts, these statements have become common
procedure. Sadly, they have evolved from a brief recount of a factual witness’ memory
of the events, into a combination of legal submissions, comments upon documents that
speak for themselves (even those not previously seen by the witness prior to arbitral
proceedings), and speculation across many things, including the overarching merits of
a dispute.
A ’witness’ is an individual providing evidence to an arbitral tribunal to assist
the tribunal in finding the necessary information to render an award. Ordinarily,
witnesses of fact are differentiated from expert witnesses. Under common law doctrines,
this distinction is reliant upon the rule against opinion evidence, or evidence of an
opinion that is inadmissible, unless provided by one qualified by experience or training
to give that opinion, considered an expert witness.6 Conversely, lay witnesses
traditionally provide evidence on what they perceived, either through sight, hearing or
touch. This form of evidence may extend further to describe events or circumstances
based upon what has been told by others. The comments which follow focus upon lay
witnesses (hereinafter, ‘witness’).
A witness statement is the document used as a vehicle for the witness’ provision
of evidence-in-chief regarding the factual issues disputed in an arbitration. Opposing
parties may (but need not necessarily) cross-examine witnesses called by the other party.
The cross-examination does not need to be restricted to the matters outlined in the
witness statement. Instead, other concerns in the arbitration not addressed in the witness
statement may be opened up during cross-examination. If cross-examination occurs, the
party calling the witness may re-examine the witness. However, where cross
examination does not transpire, the whole evidence of the witness will be contained in
the witness statement alongside any responsive witness statement.
A witness statement should be an account of a witness’ recollection of events, as
the witness remembers them. The statement should be written primarily in the witness’
own words, despite the assistance of lawyers in preparing the statement.
Next, in its entirety, the witness statements must fill gaps in factual evidence
created by the documents. In the context of modern disputes, this will mainly be
documentary evidence, covering a substantial amount of the facts in dispute. Whilst this
may be cumbersome given the sheer scale of documentary evidence, the facts in
contention are often required to be the subject of witness evidence. This may occur as
6
E.g. Civil Evidence Act 1972 (UK), section 3; Evidence Act 1995 (NSW), sections 76(1), 79.

8
additional commentary is needed to supplement the contents of the document, which are
insufficient in conveying the entire story on its own. It may be due to no document
addressing a specific issue, thereby necessitating witness evidence to resolve the issue.
It may also reflect part of a case focusing upon a conversation which was not the subject
of documentary record. Therefore, in summation, witness statements should contain
what a perceived, no more, no less.
In addition, a witness statement is an effective means through which a party may
convey their side of the story. A relatively senior director or employee will typically be
chosen by the party to provide an account to the tribunal of how the party views the
circumstances, being the subject matter of the dispute, along with the issues encountered
creating the need for arbitration. This assists the tribunal in understanding the entirety
of the surrounding circumstances, including why the parties believe the dispute has
occurred. However, this purpose must not be overstated. A witness statement should
avoid becoming a vehicle aiding the repetition of legal submissions, or a method for
lawyers to construct the story in a manner they deem fit. Instead, it must represent the
witness’ own words, enabling the witness to explain, on the party’s behalf, their
perspective of the factual background and the consequent dispute.
Finally, witness statements can give a useful framework for expert witnesses to
provide their opinions and prepare reports accordingly. The absence of a factual
background from the witnesses of each party means experts may struggle in providing
an opinion which facilitates the tribunal’s resolution of the dispute. Without these factual
foundations, the expert opinions may be characterised as general or unspecific, thereby
being rendered unhelpful.
Benefits
The use of witness evidence, specifically statements, is associated with
paramount objectives of arbitral efficiency and the reduction of costs and delays, factors
considered significantly beneficial to the arbitral process in complex construction
disputes.
First, witness statements operate to circumvent oral examination-in-chief,
thereby decreasing the length of a hearing.7 The time-consuming nature of evidence-in-
chief can be attributed to non-leading (i.e. open) questions generally being asked.
Witness statements assist in reducing costs incurred by parties by reducing the time
spent at a hearing. This further benefits the tribunal in preparing the award, by
establishing the evidence-in-chief in a coherent narrative, as opposed to relying upon a
transcript containing questioning, the structure and content of which may be difficult to
comprehend. This also facilitates debate and objection regarding leading questions in
examination-in-chief being avoided.
Witness statements provide parties with fair and advance notice of evidence the
other sides shall rely upon at the hearing and in the delivery of submissions to the
tribunal. Generally, this means the written submissions in memorials, or those made
immediately prior to the hearing commencing (often referred to as ‘opening
submissions’), can account for that evidence. This means the arguments of parties are
more directed and focused, which benefits the tribunal in preparing for the hearing.8
7
Angoura, “Written Witness Statements in International Commercial Arbitration” [2017] International
Arbitration Law Review 106, 107.
8
Born, International Commercial Arbitration (3rd edition, 2020) 2425.

9
 In addition, witness statements enable principal actors of parties to set out, in
their own words, their perspective of the story to date and the matters forming the subject
of the dispute.
Furthermore, these statements may advance the settlement of a dispute prior to
the hearing, as parties have a more developed understanding of the evidence opposing
their case. This may occur in at least two ways. The legal representatives will review
the witness statements to ascertain its impacts upon their respective prospects of success,
subsequently advising their clients accordingly. From the perspective of the parties, this
provides the principal actors with insight into how the other side may view the dispute,
and their motivations behind the case, information which may have been previously
unknown. These fresh perspectives, across legal and personal spheres, may compel
parties to settle, an outcome previously considered unlikely. However, it remains
prudent to not overstate the function of witness statements in achieving a settlement
where one was previously unreachable, though there are at least some cases where this
has transpired.
Lastly, witness statements facilitate a more focused cross-examination, as the
cross-examiner can engage in more specific preparation buy knowing the evidence-in-
chief in advance, thereby honing onto the key points relevant for questioning. As a
result, this ensures critical issues necessary for the client to prove become the subject of
cross-examination.
Drawbacks
Despite the important functions of witness statements, they have been
characterised by features rendering them less useful for the witness, the parties, counsel
and the tribunal. In counsel’s possession, witness statements have transitioned from a
written account of evidence to be given by a witness in their own words under oral
questioning before a tribunal, to an unhappy combination of legal submission,
documentary commentary and quotation, and speculation, with some direct experiential
evidence included (but not always).9 A prototypical witness statement in a contemporary
international arbitration has few similarities to what a witness would realistically say if
providing evidence to the tribunal, despite this being the sole intended purpose.10
Witness statements have thereby become mechanisms for lawyers to make legal
submissions, despite having sufficient opportunity to do so through pleadings, written
submissions and oral arguments before the tribunal.11
There are several issues with this transition.
The most critical issue resides in the capacity of witness statements to eventually
cease bearing resemblance to the witness’ own words. These statements have grown into
a manifestation of lawyers’ minds, as they mould the evidence to fit the case being
advanced for their clients, rather than informing the tribunal of facts relevant to the

9
For similar criticism, see Mansion Place Limited v Fox Industrial Services Limited [2021] EWHC 2747 (TCC),
[37].
10
Veeder, “Introduction” in Levy & Veeder (eds) Arbitration and Oral Evidence (2004), 7-9; Sanders, Quo
Vadis Arbitration? (1999), 262; Landau QC, 5.
11
Hirsch and Reece, “Witnesses in International Arbitration” (2017) 4 International Business Law Journal 315,
324; Hunter, “The procedural powers of arbitrators under the English 1996 Act” (1997) 13 Arbitration
International 345, 353.

10
resolution of the dispute.12 Consequently, witness statements become less useful as the
tribunal places less emphasis and weight on them, accounting for the substantial input
from lawyers which detracts from the statement representing the witness’ own
evidence.13 Therefore, the significant amount of time, effort and expense dedicated
towards creating these documents are ultimately of diminished utility to the tribunal and
the parties. Indeed, in this form, witness statements may threaten the party’s case given
the minimal weight placed on them, resulting in parties having little, if any, witness
evidence of substance conveying the party’s story before the tribunal.
In addition, the tendency to quote from, and comment upon, contemporaneous
documents has minimal benefits for the advancement of a party’s case. Documents can
usually be viewed independently, such that witness documentary is unlikely to facilitate
the tribunal’s understanding of the document’s content.
Furthermore, the tribunal, alongside any witness or lawyer, may read and
interpret the contents of the contemporaneous documents. A party’s legal
representatives may be expected to advance a document’s interpretation in favour of that
party through written and oral submissions. A witness’ commentary on those
documents, either in the words of the lawyer or witness, may provide additional weight
to a party’s preferred interpretation of a document, although this is rare.
Thirdly, the difficulties established above are intensified through a witness
commenting upon a document initially seen when preparing their witness statement
several months or years past the arbitration’s commencement, and well after the date the
document came into being. A witness’ commentary on an email they never received, or
a document previously unseen prior to the dispute, is likely to have little probative value
or relevance in assisting the tribunal or parties in understanding the document’s content
and effect.14
Finally, witness statements are now regarded as an additional means of
presenting legal submissions.15 Opportunities for legal representatives to advance
submissions are sufficiently woven through arbitral procedure itself. Depending on the
procedure adopted, this includes pleadings, opening written submissions, oral
submissions at the beginning, during and at the end of a hearing, and post-hearing
written submissions. Therefore, replicating these submissions through the words of a
lay witness is highly unnecessary,16 indicating the witness’ evident lack of preparation
of their own statement to the tribunal, contributing towards wasted time and costs and,
most significantly, diluting the value and credibility of the witness’ overall evidence.
These limitations have watered down the utility of witness statements in
determining international commercial disputes, substantially reflecting the fault of
lawyers. The witness statement has devolved into another document to be drafted, read
and digested by lawyers across all sides, necessitating the preparation of responses and

12
Dukeries Healthcare Ltd v Bay Trust International [2021] WTLR 809 at [133]; HM Courts and Tribunals
Service, Factual Witness Evidence in Trials before the Business & Property Courts: Implementation Report of
the Witness Evidence Working Group (July 2020), [10].
13
See Exportadora De Sal SA de CV v Corretaje Maritimo Sud-Americano Inc [2018] 1 Lloyd’s Rep 399 at
[24].
14
See JD Wetherspoon plc v Harris [2013] 1 WLR 3296, 3304 [39].
15
Hunter, “The Procedural Powers of Arbitrators under the English 1996 Act” (1997) 13 Arbitration
International 345, 353.
16
See JD Wetherspoon plc v Harris [2013] 1 WLR 3296, 3304 [39].

11
further consideration of the tribunal. This has actively impeded the arbitral process,
obstructing the efficient disposition of cases submitted to arbitral tribunals. As a result,
the tribunal must allocate time assessing witness evidence during the process of forming
the award. This cumulatively heightens the effects of wasted time and costs, rendering
the arbitral process as a slower and costlier framework than initially intended.
This emphasises the need for witness statements to be prepared appropriately to
ensure they facilitate, rather than impedes, the resolution of arbitral disputes.
Expert Evidence in Complex Construction Arbitration
The importance of expert evidence in resolving complex construction disputes
cannot be understated. In respect of infrastructural megaprojects which span multiple
countries and involve multiple industry actors, each with their own contracts, it is not
difficult to imagine that experts might be a valuable, indeed necessary, tool to make
sense of the vast amount of financial and logistical resources that go into these projects,
let alone the complex consequences of any deficiencies in the project’s delivery.
However, the use of expert witnesses, and the reliance on expert evidence, can
be a double-edged sword: when used and managed properly, the benefits to the course
of an arbitration can be substantial; but when mismanaged, there is a very real potential
for wastage of time and resources.

Kinds of Experts
It is important to be clear as to what is meant by expert evidence. Obviously,
different experts are relied upon by parties in different matters in different ways,
dependent upon the needs of the matter and the parties in question.
Expert Disciplines
One can generally divide the kinds of areas of expertise on which expert opinion
is required into three categories: technical expertise, legal expertise, and experts brought
on to analyse issues such as quantum, delay and disruption.17
The first category, technical expertise, is a straightforward category, in that
technical experts are brought on to explain to the tribunal a particular area where
technical knowledge is essential. This is not to say that the work or the calculations that
such experts carry out are simple  far from it, the nature of their role is such that this
work is usually extremely complicated. However, the benefit that they bring to the
tribunal is quite immediate and easily understood.
Legal expert witnesses are also a fairly straightforward category, in that there is
called for simply an expert opinion on a particularly contentious and important aspect
of the law.18 Areas in need of legal expertise may especially be found in international
disputes, where a tribunal is required to consider legal propositions and consequences
from multiple systems of law.19 There is an obvious tension involved in posing legal
17
Nigel Blackaby and Alex Wilbraham, ‘Practical Issues Relating to the Use of Expert Evidence in Investment
Treaty Arbitration’ (2016) 31(3) ICSID Review 655, 660.
18
See generally Brooks W Daly and Fiona Poon, ‘Technical and Legal Experts in International Investment
Disputes’, in Chiara Giorgetti (ed), Litigating International Investment Disputes: A Practitioner’s Guide (Brill,
2014) 323, 337.
19
Donald Francis Donovan, ‘Re-examining the Legal Expert in International Arbitration’, in Hong Kong
International Arbitration Centre (HKIAC) (ed), International Arbitration: Issues, Perspectives and Practice: Liber
Amicorum Neil Kaplan (Wolters Kluwer, 2018) 247, 2535.

12
questions not to the parties or to counsel, but to a separate expert, whose opinion is then
obviously subject to any cross-examination or counter-opinion from the parties.20 For
this reason, this category of expert is seldom the first choice of parties or tribunals in
international arbitration. It must be said, however, that this class of expert has ancient
precedent, stemming back to Roman law principles,21 and resembles the office that is
perhaps more familiar to the modern lawyer of the amicus curiae, which still sees use
in common law jurisdictions today.22
The final category is certainly a somewhat looser category, and contemplates all
such experts as are required not to carry out a calculation or provide a legal proposition,
but to sort, analyse and evaluate what are usually vast amounts of data and evidence.
Issues such as delay or quantum in construction projects require an in-depth
understanding of the multiplicity of issues in construction projects  legal and
otherwise  and call upon not only technical expertise, but analytical and evaluative
skills on the part of the expert.23
Advisors vs Witnesses
Another important way of characterising experts stems from the way in which
they are deployed by the parties. Often experts are called upon in the capacity of advisors
or consultants to the parties, in which case they typically assist in the articulation of a
party’s claims, where they may be central to the formulation of a party’s case.24 Such
experts, also known as ‘shadow experts’, are intimately and inextricably connected to
the party by whom they are employed, and whose strategies and cases they have helped
shape.25
By contrast, one has the traditional independent (or supposedly independent)
expert witness. Such an expert witness may be, depending upon the set of procedural
rules adopted, appointed by the parties or by the tribunal itself. In either case, this
expert’s primary duty is to the tribunal, which they are to assist through the impartial
analysis of the facts of the case. These experts may provide their opinions in written
format, such as in independent or joint expert reports, or may be called to give evidence
orally in hearings. Typically they are called upon to do both.
Party and Tribunal Appointment
The author has alluded to the distinction between party-appointed and tribunal-
appointed experts. This is a fundamental distinction which has serious consequences for
the treatment of expert evidence and the management of expert witnesses in disputes,

20
Cf Nigel Blackaby, Constantine Partasides and Alan Redfern, Redfern and Hunter on International Arbitration
(Wolters Kluwer, 7th ed, 2023) [6.151][6.152].
21
See S Chandra Mohan, ‘The Amicus Curiae: Friends no More?’ [2010] (December) Singapore Journal of Legal
Studies 352, 363; Edmund Ruffin Beckwith and Rudolf Sobernheim, ‘Amicus Curiae: Ministers of Justice’ (1948)
17(1) Fordham Law Review 38, 40.
22
See, eg, United States Tobacco Co v Minister for Consumer Affairs [1988] FCA 241, [68] (Einfeld J).
23
See John A Trenor, ‘Strategic Issues in Employing and Deploying Damages Experts’, in John A Trenor (ed),
The GAR Guide to Damages in International Arbitration (Law Business Research, 2nd ed, 2017) 136, 136; Edna
Sussman, ‘Arbitrator Decision Making: Unconscious Psychological Influences and What You Can Do about
Them’ (2013) 24(3) American Review of International Arbitration 487, 497.
24
See London Court of International Arbitration, ‘Experts in International Arbitration’, LCIA: Arbitration and
ADR Worldwide (Web Page, 17 January 2018) <https://www.lcia.org/News/experts-in-international-
arbitration.aspx>.
25
Julian Haslam-Jones, ‘Are Shadow Experts Having a Positive Impact on Disputes’ (2021) 22 Driver Trett Digest
223.

13
especially in complex and technical construction disputes which rely so heavily on
experts. This distinction derives, of course, from the different practices of the two most
common legal systems: common law and civil law. Common law jurisdictions rely on
an adversarial model, whereby the emphasis is on party choice and party-led
submissions; all before a judge who is impartial and, historically, passive to a certain
extent. Parties are therefore relied upon to call their own witnesses, factual witnesses
and expert witnesses, to establish the points that they wish to establish, and rebut those
of their adversary.26 By contrast, the inquisitorial role of judges in civil law jurisdictions
requires them to take the initiative in fact-finding. As such, court-appointed experts are
the standard in those jurisdictions.27
In the time before the signing of the New York Convention,28 when international
arbitration was conducted primarily in European, civil law jurisdictions, the practices of
those traditions naturally prevailed. However, following the New York Convention, and
the bursting onto the scene of the United Kingdom and the United States, the tide
turned;29 and although international arbitration is flexible, and indeed at its core reflects
a hybrid, multijurisdictional system of dispute resolution,30 party-appointed experts
reflect by far the most common form of collecting expert evidence today, with surveys
over the past decade indicating that party-appointed experts are used in over 90% of
disputes.31 The reason for this lies in the importance placed on party autonomy, viewed
by many as among the most fundamental attractive features of international arbitration.32
As part of this autonomy, the ability to choose experts and deploy their expertise in the
way most suitable to the case of the party in question is fundamental.

Party-appointed Expert
A number of persistent issues plague the role of the party-appointed expert, and
serve often to reduce their utility even in complex construction disputes.

26
See Sir Harry K Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in
England and Wales (HMSO, 1996) [13.6].
27
Christian Johansen, ‘The Civil Law Approach: Court-Appointed Experts’ (2019) 13(4) Construction Law
International 18, 18. See also Julian DM Lew, Loukas A Mistelis and Stefan M Kröll, Comparative International
Commercial Arbitration (Wolters Kluwer, 2003) 5557.
28
Convention on the Recognition and Enforcement of International Arbitral Awards, opened for signature 10 June
1958, 330 UNTS 3 (entered into force 7 June 1959) (‘New York Convention’).
29
Javier Rubenstein, ‘International Commercial Arbitration: Reflections at the Crossroads of the Common Law
and Civil Law Traditions’ (2004) 5 Chicago Journal of International Law 303, 303.
30
See generally Rolf Trittmann and Boris Kasolowsky, ‘Taking Evidence in Arbitration Proceedings between
Common Law and Civil Law Traditions: The Development of a European Hybrid Standard for Arbitration
Proceedings’ (2008) 31(1) University of New South Wales Law Journal 330.
31
Ibid 335; George Burn, Claire Morel de Westgaver and Victoria Clark, ‘Expert Evidence in International
Arbitration: Saving the Party-Appointed Expert’ (Survey, Bryan Cave Leighton Paisner, 2021) 9; Queen Mary
University of London, ‘2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral
Process’ (Survey, 2012) 29; Queen Mary University of London, ‘2021 International Arbitration Survey: Adapting
Arbitration to a Changing World’ (Survey, 2021) 13. See also International Bar Association, IBA Rules on the
Taking of Evidence in International Arbitration (adopted 17 December 2020) arts 56, making the use of party-
appointed experts the default, whereas the use of tribunal-appointed experts requires first consultation with the
parties.
32
Queen Mary University of London, ‘2019 International Arbitration Survey: Driving Efficiency in International
Construction Disputes’ (Survey, 2019) 23. George Burn, Claire Morel de Westgaver and Victoria Clark, ‘Expert
Evidence in International Arbitration: Saving the Party-Appointed Expert’ (Survey, Bryan Cave Leighton Paisner,
2021) 16.

14
 Bias
Foremost amongst these issues is the concern that party-appointed experts are
essentially partisan, and act rather in the capacity of ‘hired guns’ in the interest of the
parties than as neutral providers of expert opinions to the tribunal. There need not be
anything sinister  simply having a closer personal and professional relationship with
the counsel and clients of one side as opposed to those of the side may be enough to
sway the expert’s mindset, or motivate the expert to be more favourable and less
antagonistic to one side during, for example, direct and cross-examination. Such bias
may be conscious or subconscious  for example, the fact that experts are remunerated
by the party that appoints them may create a subconscious desire in the expert’s mind to
tailor their findings to the needs of that party, or may incentivise the expert actively to
do so in the interests of repeat business.33 Repeat business is itself a large and recurrent
issue for experts, just as it is for arbitrators.34 Obviously, repeat appointments of experts
by the same party in respect of complex, technical disputes may simply be due to the
small pool of specialised individuals available. However, serious concerns may arise
insofar as the expert begins to view their livelihood as tied with keeping one particular
party satisfied and financially afloat. Experts in such situations may also struggle to
confine their analysis or findings to the matter before them, and may instead allow
themselves to be influenced by what other knowledge they have of the party or its
dealings based on previous appointments.
As stated, there is a distinction between expert advisors, who are used by parties
in a very partisan way to formulate their case, and independent experts, who are required
to be impartial. Naturally, this issue of bias, conscious or unconscious, rears its head
when an expert acts both in an advisory capacity to a party, and in the role of expert
witness who advises the tribunal.35
These biases need not manifest themselves consciously in the mind of an expert
 subconscious biases are just as problematic, and indeed more insidious. These biases
need not even manifest themselves at all. Even the perception that such biases exist in
an expert or their work can jeopardise the confidence of the parties in the arbitral
procedure. This can lead to a lack of engagement and, in extreme cases, a final award
being subject to challenges. It can also lead to inefficiency, in that concerns over the
accuracy of expert evidence can complicate and delay proceedings, and even, ironically,
require the tribunal to appoint its own expert to sort through the evidence provided by
both parties. Clearly, that outcome, which is not unheard of in common law litigation,36
would waste the time and resources of the parties. For a tribunal to be this suspicious of
an expert’s evidence is also an example of expert evidence undermining a party’s case,
rather than enhancing it.
This is, in many ways, the foremost concern regarding part-appointed experts.
However, as it involves subconscious biases, it is difficult to regulate against.
Institutional rules typically provide only for basic powers of the tribunal, such as
requiring expert witnesses to appear in evidentiary hearings, and are usually designed to

33
See Abinger v Ashton (1873) LR 17 Eq 358, 374 (Jessel MR).
34
Queen Mary University of London, ‘2018 International Arbitration Survey: The Evolution of International
Arbitration’ (Survey, 2018) 323.
35
International Chamber of Commerce Commission on Arbitration and ADR, Construction Industry Arbitrations:
Recommended Tools and Techniques for Effective Management (Report, February 2019) 22 [18.3].
36
See, eg, White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166, [22].

15
promote party autonomy, rather than prescribe rigid guidelines.37 Important efforts have
been made to place proscriptions on the activities of experts, such as by mandating open
and transparent communication by experts with the tribunal and all parties. Common
also are legal declarations by experts, for example in their expert reports, that they are
acting independently and primarily for the benefit of the tribunal.38 However, the extent
to which these words are effective and not simply hollow and therefore incapable of
addressing the primary problems is of course debatable.39
Any radical changes to the status quo seem unlikely, and would in any case bring
problems of their own, as will be discussed later in this paper. What is ultimately
proposed is that an active, indeed proactive, tribunal is the only way for these issues,
among others, to be managed, recognising that they cannot ever be ‘solved’ in an entirely
satisfying manner.
Use of Evidence
Whereas ‘bias’ is the more immediate concern when one thinks of party-
appointed experts, in practice the more pressing concern is the risk that the experts will
fail to cooperate or engage properly with their peers appointed by the opposing party.40
It is an unfortunate but common phenomenon where experts from opposing sides do not
consider various alternative operating methodologies, including that favoured by the
opposing expert, to enable the tribunal to compare the outcomes under all of these
methodologies and factual assumptions. Too often, experts rely only on those facts
which they personally, or the party which appointed them, believe to be true. This is
especially problematic in fields such as disruption and delay, where there are multiple,
equally valid and accepted methodologies.
An ironic, practical problem is the overuse of expert evidence.41 Parties often
presume that more experts will lead to a stronger argument, even in issues which are
clearly not worth the wasted time or expenditure. The inefficiency this causes is
especially obvious when there is an asymmetry in the reliance on expert evidence
between the two parties, with one party effectively running its case and making legal
propositions by puppeteering its experts, and the other simply glossing over those issues.
Expert witness conferencing, or ‘hot-tubbing’, is a common way of responding
to these issues.42 This involves convening all experts in an in-person or virtual

37
Klaus Sacs and Nils Schmidt-Ahrendts, ‘Protocol on Expert Teaming: A New Approach to Expert Evidence’,
in Albert Jan van den Berg (ed), Arbitration Advocacy in Changing Times (Wolters Kluwer, ICCA Congress Series
No 15, 2011) 135, 137. See, eg, International Chamber of Commerce, ICC Arbitration Rules (adopted 1 January
2021) art 25; London Court of International Arbitration, LCIA Arbitration Rules (adopted 1 October 2020) arts
201.
38
See International Bar Association, IBA Rules on the Taking of Evidence in International Arbitration (adopted
17 December 2020) art 5(2)(c); Chartered Institute of Arbitrators, CIArb Protocol for the Use of Party-Appointed
Expert Witnesses in International Arbitration (September 2007) arts 4.5(n), 8.1.
39
See Mark Kantor, ‘A Code of Conduct for Party-Appointed Experts in International Arbitration: Can One be
Found?’ (2013) 26(3) Arbitration International 323, 329; See generally Brooks W Daly and Fiona Poon,
‘Technical and Legal Experts in International Investment Disputes’, in Chiara Giorgetti (ed), Litigating
International Investment Disputes: A Practitioner’s Guide (Brill, 2014) 323, 350.
40
Queen Mary University of London, ‘2018 International Arbitration Survey: The Evolution of International
Arbitration’ (Survey, 2018) 33.
41
See Brooks W Daly and Fiona Poon, ‘Technical and Legal Experts in International Investment Disputes’, in
Chiara Giorgetti (ed), Litigating International Investment Disputes: A Practitioner’s Guide (Brill, 2014) 323, 338.
42
The practice was pioneered by Australian courts: Megan A Yarnall, ‘Dueling Scientific Experts: Is Australia’s
Hot Tub Method a Viable Solution for the American Judiciary?’ (2009) 88 Oregon Law Review 311, 312.

16
conference and encouraging an open, forum-like discussion on the most important issues
of contention, well prior to the hearing. Placing all experts together is valuable. It sorts
out at least some of the confusion created by a linear string of expert reports, often
months apart and which often do not respond properly to one another.43 This forum also
makes experts accountable  they are less likely to use flawed methodologies or raise
peripheral issues if they can be challenged on the spot by their peers. Pre-hearing CMCs
and hot-tubbing as part of the evidentiary hearing can yield benefits, such as the
narrowing of issues for treatment in the main hearing, or even the resolution and
settlement of those disputes. These discussions are best led by the tribunal  even
though surveys indicate mixed feelings for the utility of hot-tubbing in general,44
respondents to such surveys almost universally favour such conferences when they are
led proactively by the tribunal.45 The tribunal should encourage open communication on
the part of the experts. Notably, the parties and counsel take a back seat, by contrast to
in cross-examination.

Tribunal-appointed Experts
Clearly, many of these problems stem from the nature of party-appointed experts.
One might therefore consider tribunal-appointed experts to be the obvious means of
countering these difficulties.
Naturally, allowing experts to be appointed by the tribunal effectively neuters
most concerns regarding bias. Whereas some models, such as the Sachs Protocol, named
for Dr Klaus Sachs, do involve a certain level of party-participation in the nomination
of potential experts, having experts be appointed by the tribunal removes most sources
of potential bias, such as the source of remuneration.46 However, the concerns of bias
on the part of experts should not be overstated  recent surveys suggest that parties are
generally satisfied with the ability of tribunals to curb the likelihood of expert bias
through effective supervision and case management.47
Tribunal-appointed experts are practically easier to manage: as there is usually
one per discipline, there is no risk of opposing parties’ experts failing to collaborate or
properly join issue. Further, just as party-appointed experts may be consciously or
unconsciously predisposed to produce export reports that favour the party that appoint
them, it is also generally in the expert’s interest to produce reports that tribunals would
prefer  in other words, succinct reports.48
There are, however, a number of problems associated with tribunal-appointed
experts. Notably, the greatest strength of the adversarial system that is the norm in

43
See Justice Steven Rares, ‘Using the “Hot Tub”: How Concurrent Expert Evidence Aids Understanding Issues’
[20102011] (Summer) Bar News 64.
44
See generally Queen Mary University of London, ‘2012 International Arbitration Survey: Current and Preferred
Practices in the Arbitral Process’ (Survey, 2012) 28.
45
George Burn, Claire Morel de Westgaver and Victoria Clark, ‘Expert Evidence in International Arbitration:
Saving the Party-Appointed Expert’ (Survey, Bryan Cave Leighton Paisner, 2021) 20. See also Institute of
Chartered Accountants in England and Wales, ‘Concurrent Expert Evidence: Hot Tubbing’ (Practical Guidance,
2021) 2.
46
See Klaus Sachs, ‘Experts: Neutrals or Advocates’ (Conference Paper, ICCA Congress, 2010) 1315.
47
George Burn, Claire Morel de Westgaver and Victoria Clark, ‘Expert Evidence in International Arbitration:
Saving the Party-Appointed Expert’ (Survey, Bryan Cave Leighton Paisner, 2021) 14.
48
John H Langbein, ‘The German Advantage in Civil Procedure’ (1985) 52(4) University of Chicago Law Review
823, 838.

17
international construction arbitration is the ability of a tribunal to assess competing
perspectives.49 Difficult as that task may be, it is seldom worth abandoning. As stated
above, the use of expert evidence is especially important in complex disputes, where
cases may be won or lost based on the manner in which expert evidence is presented.50
A party to such disputes may view it as fundamental to its right to present its case that
it be able to present expert evidence in the manner that it wishes.51 Of course, a party
who is dissatisfied with a tribunal-appointed expert will need to expend further resources
to refute that expert, leading to greater inefficiency.52 Moreover, a tribunal is unlikely to
be able to predict precisely what kind of expert evidence will be required at the early
stage of proceedings.53
Perhaps the greatest concern is that a tribunal will, without the ability to hear
conflicting expert perspectives, simply accept the expert’s opinion at face value, leading
to the concern that experts become the ‘fourth arbitrator’ and ultimately decide large
portions of the dispute without the parties’ approval.54 That lack of party approval is
especially problematic if one party does not think that an area of the dispute calls for
expert evidence, but is nonetheless forced to pay the costs of that expert if it loses the
dispute.55 Indeed, in civil law courts, judges have been found rarely to disagree with
experts that they have appointed, as it is difficult for legally-trained judicial officers to
produce reasoned counterarguments themselves to expert opinions.56
In any case, regardless of what one concludes regarding the viability of tribunal-
appointed experts as a counterpoint to party-appointed experts, no great change in the
status quo seems likely; the trends in international arbitration lean almost universally
towards improving party autonomy, and the relaxing of constraints imposed by state
courts and arbitral tribunals.57 While tribunal-appointed experts of course retain a place
in international procedures and practice, they seem unlikely to replace the status quo as
a feasible alternative.
Managing Expert Evidence Effectively
The flexibility of international arbitration is one of its most attractive features.
However, in terms of managing expert evidence, the lack of rigid procedural guidelines
49
See Sir Harry K Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in
England and Wales (HMSO, 1996) [13.6].
50
Klaus Sacs and Nils Schmidt-Ahrendts, ‘Protocol on Expert Teaming: A New Approach to Expert Evidence’,
in Albert Jan van den Berg (ed), Arbitration Advocacy in Changing Times (Wolters Kluwer, ICCA Congress Series
No 15, 2011) 135, 141.
51
84% of respondents to a recent survey held this opinion: George Burn, Claire Morel de Westgaver and Victoria
Clark, ‘Expert Evidence in International Arbitration: Saving the Party-Appointed Expert’ (Survey, Bryan Cave
Leighton Paisner, 2021) 17.
52
Sven Timmerbeil, ‘The Role of the Expert Witness in German and US Civil Litigation’ (2003) 9(1) Annual
Survey of International & Comparative Law 163, 175, 1778.
53
See Brooks W Daly and Fiona Poon, ‘Technical and Legal Experts in International Investment Disputes’, in
Chiara Giorgetti (ed), Litigating International Investment Disputes: A Practitioner’s Guide (Brill, 2014) 323, 339;
George Burn, Claire Morel de Westgaver and Victoria Clark, ‘Expert Evidence in International Arbitration: Saving
the Party-Appointed Expert’ (Survey, Bryan Cave Leighton Paisner, 2021) 17.
54
Queen Mary University of London, ‘2012 International Arbitration Survey: Current and Preferred Practices in
the Arbitral Process’ (Survey, 2012) 14.
55
Lisa M Richman, ‘Hearings, Witnesses and Experts’, in Lisa M Richman, Maxi Scherer and Rémy Gerbay (eds),
Arbitrating under the 2020 LCIA Rules: A User’s Guide (Wolters Kluwer, 2021) 257, 275.
56
Sven Timmerbeil, ‘The Role of the Expert Witness in German and US Civil Litigation’ (2003) 9(1) Annual
Survey of International & Comparative Law 163, 1756.
57
Cf Annett Rombach and Hanna Shalbanava, ‘The Prague Rules: A New Era of Procedure in Arbitration or Much
Ado about Nothing?’ (2019) 17(2) German Arbitration Journal 53, 5960.

18
can be a hindrance. Strong-willed parties may overshadow the tribunal’s authority if
given free rein to lead their expert evidence as they wish. As stated previously, the
imposition of mandatory institutional or legal constraints will not solve the problem.
Instead, it is necessary for arbitrators generally to ensure that expert evidence is handled
in an appropriate manner, by confronting the potential challenges proactively.
Early-stage Proactivity
The author’s proposal for the effective management of expert evidence relies on
proactivity at the early stages of the arbitration, and the enshrining of distinct expert-
related procedural steps in early procedural orders.58 Whereas expert witness
conferencing is clearly in the spirit of this kind of tribunal proactivity, it often amounts
to ‘too little too late’ when it is left until just before an evidentiary hearing. An early step
that is essential is the identification of experts and of the disciplines that are thought
needing of expert opinion. Forcing the parties to make this identification requires them
to consider critically whether the issue in question in fact requires expert evidence
(which is a presumption that is often made too soon).59 If this identification is made in
a proper and considered manner, experts may be split into their appropriate disciplines
and given directions at an early stage, and any conflict or competency challenges made
early, before they have the opportunity seriously to disrupt the flow of proceedings. This
is not an entirely unprecedented proposal, and has even been enshrined in certain
institutional rules and guidelines, such as those of the Singapore International
Commercial Court,60 and in the commonly used IBA and CIArb Guidelines on expert
evidence.61
Secondly, there should be prepared a draft list of questions which the experts in
each discipline will seek, through their analysis and investigations, to answer. These
questions should be formulated by the experts, with the tribunal’s assistance as to which
answers it will likely be interested in. Importantly, they should not be formulated
primarily by the parties, who are more likely to pose antagonistic questions, which they
perceive to aid their arguments, but which ultimately do little to benefit the tribunal. The
involvement of the tribunal is important to ensure that no substantive issues have been
missed: one cannot always rely entirely on the parties to hit upon every important issue.
Obviously, such a list will not be final at the early stage of the proceedings, but will at
least provide a starting point for the experts to proceed.
Thirdly, expert reports should be handled in a way that ensures that experts from
opposing parties collaborate and either agree or meaningfully join issue. Rather than
immediately drafting submission-like expert reports, which in practice advocate for the
party that appointed them, experts should first be directed to draft joint expert reports,
prepared by way of informal discussion with the opposing experts and the exchange of
‘without prejudice’ drafts. At these preliminary stages, it is crucial that experts be given

58
For further reading on the author’s proposed procedural guidelines for the management of expert evidence, see
Doug Jones AO, ‘Methods for Presenting Expert Evidence’, in The GAR Guide to Evidence in International
Arbitration (Law Business Research, 1st ed, 2021) 154, 1624.
59
See further International Chamber of Commerce Commission on Arbitration and ADR, ICC Arbitration
Commission Report on Controlling Time and Costs in Arbitration (Report, 2018) 13 [62].
60
Singapore International Commercial Court, Practice Directions (adopted 1 April 2022) paras 1579.
61
See International Bar Association, IBA Rules on the Taking of Evidence in International Arbitration (adopted
17 December 2020) art 2; Chartered Institute of Arbitrators, CIArb Protocol for the Use of Party-Appointed Expert
Witnesses in International Arbitration (September 2007) arts 67. See also Chartered Institute of Arbitrators,
Guidelines for Witness Conferencing in International Arbitration (April 2019) 1623.

19
the opportunity to test methodologies on a preliminary basis, before diving into a
methodology which, while it may appear to assist their party, is in practice unworkable.
It is also crucial that experts’ agreements and disagreements be put on record, so that the
issues are narrowed and so that experts may be held accountable to their previous
statements. The preparation of these reports should only occur after all factual evidence
(factual exhibits and witness statements) is disclosed and on the record, so that all
experts can work from a shared data set, rather than rely on the skewed perspective that
looking only at one side’s evidence may cause, or relying on the laborious process of
disclosure in a drip-feed fashion.
Only at this stage should experts be directed to prepare individual expert reports,
and then again only on those topics about which there was disagreement in the joint
expert reports. Experts should also be able to reply to their counterparts’ individual
reports. These reply reports should be strictly confined to offering the expert’s views on
the outcome if the other expert’s methodologies and assumptions of fact are accepted.
The tribunal’s task is often to choose between a set of factual scenarios; if it chooses one
set of facts over the other, it will be greatly benefited by knowing what each expert has
to say based on that set of facts. Naturally, one expects there to be areas of disagreement
in complex disputes with multiple valid analytical methodologies. However, waiting
until this stage to produce these reports requires experts to think critically about the
topics on which they disagree, and removes some of the psychological barriers between
experts on opposing sides.
A tribunal should be honest with the parties that the management of expert
evidence is difficult  international arbitration involves many moving parts, and
usually has relatively short hearings that need to be arranged well in advance. However,
there are a number of methods which demand persistence and proactivity from a tribunal
and which may be useful in overcoming some of these variables.
The author’s experience in a recent construction arbitration involving multiple
expert disciplines provides an example of the benefits of this method. The parties to this
arbitration had originally wished to bifurcate proceedings, such that issues of liability
would first be heard and determined in full, before only then turning to issues of
quantum, and beginning the inevitable compilation of expert evidence in respect of those
issues. That is a proposal which risked causing substantial delay to the final resolution
of the dispute. Instead, by implementing the method described in this section, and
demanding collaboration from the party’s quantum experts, the parties were able to
come to an agreement on the majority of issues on quantum. They came to this
agreement in the middle of the evidentiary hearing, which meant that the hearing was
concluded days earlier than originally planned, saving all parties time and money. Had
the management of the expert witnesses commenced any later than at the very beginning
of the arbitration, it is doubtful whether this outcome would still have been possible.
Tribunal Access to Experts Post-Hearing
A relatively niche example of innovation in the use and management of expert
evidence involves allowing the tribunal to receive the benefit of expert witness
assistance in the post-hearing phase of proceedings.
Models which allow for this require the signing of an Expert Access Protocol 
an agreement between the tribunal, parties and relevant experts (usually quantum
experts) setting out how and when the tribunal is to make use of the experts. Typically,

20
the tribunal will be permitted to communicate with the experts without involving the
parties, but will only be able to do so for assistance in making calculations, rather than
for receiving evaluative opinions. This is especially useful when there is a complex
factual matrix which the tribunal will be called to decide, where particular factual
findings may reverberate and impact on a number of complex quantitative calculations.
Where these variables are complex and numerous, it is often not feasible to require
experts to prepare models in advance, which anticipate every possible factual outcome.
Rather, the experts will be best able to assist once they know precisely which factual
scenario they should proceed from. This is also far preferable to giving the parties access
to a draft final award and inviting their assistance to the making of final calculations,
which may jeopardise the ability of the successful party effectively to enforce the award
in future.
While this method appears, on its face, controversial, it has in practice caused
almost no problems and received almost universal support. Although this method is
clearly suited only to certain forms of expertise, it reflects the kind of innovation which
prioritises the independence of the expert and the proactive role of the tribunal which it
is necessary to bring to the entire process of managing expert evidence.
The Effects of Chess Clock Procedure upon Arbitral Hearings
Background
Construction lawyers are familiar with the complexity of construction disputes
leading to increasingly long and expensive oral hearings, with much of the hearing
dedicated to the cross-examination of witnesses and experts. This lies in tension with
one of the key objectives of arbitration of ensuring efficiency in the proceedings, and it
is therefore crucial that arbitrators make appropriate use of strategies to manage the
efficiency of hearings. The ‘chess clock’ procedure is one such method that arbitrators
use to ensure that the length of hearings remains in check, resulting in significant time
and cost savings.
What is it?
The ‘chess clock’ procedure is a time management method involving the prior
agreement of the parties and tribunal to allocate a specific amount of time to each party
for the oral hearing.62 The time is typically divided equally between the parties for them
to use as they see fit, though in some cases the tribunal may prescribe time limits for
specific steps in the proceedings (e.g. for opening submissions, evidence-in-chief, cross-
examination or closing submissions). Time is also allocated for the tribunal to question
parties and witnesses, along with administrative matters. Once a party’s time limit has
elapsed, no further oral submissions or evidence is permitted except by agreement
between the parties, and the consent of the tribunal. Such an extension may be required
in exceptional circumstances, such as fraudulent concealment of a relevant matter by a
party.63
The time allocations and rules should be discussed at a pre-hearing conference
between the tribunal and the parties. The parties should also agree on when certain

62
Mark E Appel, ‘The Chess Clock: A Time Management Technique for Complex Cases’ (2006) 61(2) Dispute
Resolution Journal 82, 84.
63
Albert A Monichino, ‘Stop Clock Hearing Procedures in Arbitration’ (2009) 11(3) Asian Dispute Review 76,
81.

21
activities should be debited against their time allocations, for example, late arrivals,
setting up of equipment, unjustified objections, or where a witness engages in time-
wasting behaviour. The parties and tribunal should also decide on administrative matters
such as the method of time-keeping throughout the proceedings (e.g. by the tribunal
secretary, or by representatives of each party). Finally, it is critical in chess clock
proceedings, especially those making use of extensive witness evidence, to include a
procedural direction that a failure to cross-examine a witness on a particular matter does
not constitute acceptance of their evidence,64 given the time constraints on cross-
examination.
There is no one-size-fits-all procedure, and the tribunal should develop a
procedure which is tailored to the parties and the specific dispute. Relevant
considerations include the number and type of witnesses, as well as the method of taking
evidence (e.g. witness conferencing). Furthermore, though the division of time between
parties is usually equal, the tribunal may assign different time limits, for example, where
the parties must cross-examine different numbers of witnesses, or more extensive cross-
examination of some witnesses is required.65
Benefits
In my view, the chess clock procedure is a powerful tool to manage the conduct
of hearings which should be deployed more often in the resolution of construction
disputes. Though it is not a perfect solution, for the most part, its benefits greatly
outweigh the possible disadvantages of its use.
First of all, the chess clock procedure fundamentally changes the nature of
proceedings, by directing the parties, including in their examination of witnesses and
experts, to focus on the key issues in dispute in the limited time available to them. Chess
clock hearings require thorough prior preparation by the parties, both in terms of
anticipating the time necessary for certain elements of the hearing, and in the lead-up to
the hearing itself, to ensure to maximise the use of the allocated hearing time. This has
the effect of reducing the length and costs of oral hearings, in addition to creating
certainty for the arbitrators and parties, through an accurate and early estimate of the
time required for the hearing.66
In addition to providing parties with greater control over the conduct of hearings,
the chess clock procedure also shares the onus of efficiency more equally between the
tribunal and the parties, as parties bear the burden of effective time allocation, both in
terms of developing coherent arguments at the written phase, and persuading the tribunal
through examination and cross-examination on the most pertinent issues in dispute.67
The parties place greater focus on comprehensive but concise written submissions which
sets out the key issues and arguments prior to the hearing, which the arbitrators are
expected to have read and synthesised prior to the hearing. Additionally, counsel must
make calculated decisions as to the breakdown of time between factual and expert

64
Charlie Caher and John McMillan, ‘The Evaluation of Witness Evidence in Time Limited Arbitral
Proceedings: The Chess Clock and the Rule in Browne v Dunn’ (2017) 24 Young Arbitration Review 32, 35.
65
Harvey J Kirsh, ‘The Use of a Chess Clock in Construction Arbitration Proceedings’ (2020) 36(5)
Construction Law Letter 1, 3.
66
Keith Steele and Leah Ratcliff, ‘Procedural Flexibility and Economic Efficiency – Litigation and Arbitration
Compared’ (2008) 119 Australian Construction Law Newsletter 7, 11.
67
Jan Paulsson, ‘The Timely Arbitrator: Reflections on the Böckstiegel Method’ (2006) 22(1) Arbitration
International 19, 22.

22
witnesses, which witnesses are to be or not to be cross-examined, the time allocated to
cross-examining each witness, which issues the witness is to be cross-examined on, and
the key documents to be presented to that witness. Rather than using the oral hearing as
an opportunity to present all relevant evidence, it becomes an opportunity to test the
credibility of opposing witnesses, and to highlight key arguments and flaws in the
opposing side’s case.68 Counsel must also be extremely organised as time is usually
deducted for delays in arrival and searching for relevant documents.
This, however, does not mean that tribunals allow the entire responsibility of time
management to fall onto the parties. The tribunal plays an important role in controlling
the evidence of witnesses and dismissing strategic or dilatory objections by counsel. For
example, the tribunal should encourage efficient behaviour in counsel and witnesses
(e.g. reminding rambling witnesses to answer questions directly) and by themselves
avoiding unnecessary questions to stay within the allocated time for questioning.69
Criticisms
The key criticism of the chess clock procedure is that it may undermine due
process: one or both of the parties may be denied a sufficient opportunity to present their
case, including the opportunity to present all relevant evidence to the tribunal; one party
is a more complex case may be disadvantaged by being confined to the same time limit
as the opposing side; or the respondent in the arbitration may be disadvantaged by not
having had the same time as the claimant to consider the case before the notice of
arbitration was issued.70
However, there is in every case a tension between the need to ensure due process,
and the arbitrator’s duty to ensure an efficient and expeditious proceeding, and the
arbitrator retains a wide discretion as to management of the proceedings. Where the
chess clock procedure is used, the parties will have agreed in advance on the procedure
and time allocations, and these risks can be managed by ensuring adequate opportunity
for the parties to prepare for the hearing.71
Other criticisms which are more difficult to counter are the points that efficiency
throughout the proceedings does not mean that preparation is efficient, as parties may
expend exorbitant legal fees on comprehensive written submissions and trial
preparation, and that parties should not be punished for the mismanagement of
disorganised counsel.72
The tribunal should manage such criticism to the best of their ability, by
cooperating with counsel and listening carefully to each party’s time needs and guide
the parties both to a suitable agreement and throughout the proceeding. Tribunals should
remain full up to date as to the relevant issues and take a proactive approach to rambling
witnesses to ensure the proceeding remains on track.
Additionally, chess clock procedure need not be adopted in every case. Where
the parties are staunchly opposed to the procedure, it should not be forced on them.

68
Steele and Ratcliff (n 23) 11.
69
Appel (n 629) 84–85.
70
See Paulsson (n 24) 23–26.
71
Steele and Ratcliff (n 23) 12.
72
Rajendra Navaratnam, ‘Practical Guidelines on the Reception of Evidence in Arbitration’, Institution of
Engineers Malaysia (Web Page)
<https://www.myiem.org.my/assets/download/Lec4_EngrRajendra_12Sept06.pdf>.

23
Additionally, in some cases, parties may not be able to accurately estimate how much
time will be required during the hearing, such as where one party is unfamiliar with the
arbitration.73
Pleadings and Memorial Approaches
A key point of ongoing discourse within the arbitral community is whether
complex construction arbitral matters should use traditional common law pleadings, or
should they alternatively adopt a memorial approach.
As identified earlier, witness statements are fundamentally plagued by several
limitations such as: (i) over-lawyering, (ii) extensive commentary and quotation from
documents, (iii) legal submissions, and (iv) speculation. Indeed, this issues may be
addressed through the adoption of a memorial approach, thus rejecting the more
traditional common law pleading approach.
The process of material preparation for a final hearing before an international
arbitral tribunal is typically conducted through either the memorial or pleading
approach. Whilst these are not diametrically opposing approaches, the innate flexibility
of international arbitration enables the tribunal and parties to design a procedure
incorporating elements of both to best resolve the specific dispute in an efficient and just
manner.
The memorial approach originates from civil law tradition, where all
documentary and witness evidence, alongside legal submissions, are presented to the
tribunal and opponents in a single submission. The pleading approach is underpinned
by common law tradition, where parties establish their factual standpoint in written
pleadings, sequentially followed by discovery/disclosure, witness statements, expert
reports (if necessary), and written opening submissions before the oral hearing.
The key benefit of the memorial approach is demonstrated through the ability of
each witness statement and legal submission to cross-reference the contemporaneous
documents relied upon by the parties. This ensures witnesses can avoid quoting from
the contemporaneous documentary record, allowing the tribunal to thereby examine the
relevant documents in the round, as opposed to on a selective basis as chose by the
witnesses (or parties’ lawyers). Therefore, a memorial approach better assists parties in
achieving an efficient presentation of their cases and assists the tribunal in reviewing
documents in preparation for a hearing, in comparison with the pleadings approach.74
Consequently, a memorial approach will make witness statements more useful to the
tribunal.
The memorial approach provides another benefit of compelling parties to focus
on their case at an early stage and the issues in contention. A pleading approach assists
parties in advancing factual cases, without comprehensively reviewing the documents
or obtaining proofs of evidence from witnesses. Consequently, the case established in
the pleadings may be altered to suit the contemporaneous documents once reviewed, or
the witness statements, once prepared. A memorial approach also forces parties to
construct their case based upon their own contemporaneous documents which they
possess, instead of hoping their case may be further developed through documents
disclosed by the other side.

73
Steele and Ratcliff (n 23) 12.
74
Cavan and Caplan, The UNCITRAL Arbitration Rules: A Commentary (2nd edition, 2013) 494.

24
 However, a limitation of the memorial approach resides in the potential for
witness statements to engage with uncontested matters of fact. Under a memorial
approach, factual issues in disputes remain ambiguous until the first memorial is filed
by the respondent. As a result, the claimant’s witnesses risk preparing long statements
in support of allegations outlined in the legal submissions, only for certain allegations
to be accepted by the respondent, leaving the claimant’s witness statements are
unnecessarily lengthy.
Overall, tribunals and parties should mirror the memorial approach, or an
imitation of it, where parties either simultaneously or sequentially exchange memorials
containing: lay witness statements; documents being relied upon; and any legal
submissions. Those legal submissions may loosely resemble a common law pleading by
setting out the factual and legal matters the party is alleging in the dispute, but instead
extend further by advancing a legal argument with reference to cases and legal
authorities, as well as facts extracted from the documents and witness statements. This
should be succeeded by the exchanges of responsive memorials, containing the same
types of documents. The nature of the dispute itself will determine whether a further
reply round of memorials is required, although this third round may frequently be
avoided.
It is also helpful to include a chronology (which can be cross-referenced to
contemporaneous documents) and a dramatis personae in the memorial. A consolidated
single version of each document should be produced by the parties in a cooperative
manner, indicating, if required, any points of divergence between them. Provided these
documents remain solely factual, not perceived as a mechanism for parties to further
their respective cases, it assists the tribunal and parties in understanding the factual
matrix of the dispute.
A procedure for document disclosure, where parties identify relevant documents
to the dispute and subsequently disclose those to the other parties (whether helpful or
adverse to their case), may be incorporated. The disclosure of documents does not
necessarily need to form part of the memorial or the documentary record, as the parties
may deploy disclosed documents in support of their case.
It must be noted that expert evidence will be omitted from memorials. Prior to
experts providing their opinion to assist the tribunal’s resolution of the dispute, the
factual substrate must be broadly stated. It is therefore suggested that, in the majority of
circumstances, expert evidence be delayed until the first exchange of memorials have
occurred, at the minimum, ensuring experts understand the factual issues in contention
and can provide their opinion accordingly.
Singapore International Commercial Court
The intersection of innovation and international arbitral practice is exemplified
through the advent of international commercial courts. These courts, a hybrid between
litigation and arbitration, create an additional avenue for resolving cross-border
infrastructure disputes, especially construction claims of a complex nature. This concept
has been established across jurisdictions, evidenced through the English Commercial
Court, Dubai International Financial Centre Courts (“DIFC”); Qatar International Court
and the Singapore International Commercial Court (“SICC”).

25
 The function of these courts as either a companion or competitor to international
commercial arbitration has been debated extensively.75 The establishment of these
courts emphasises the need for arbitration to remain agile and fulfil the expectations of
parties, as commercial courts offer benefits that arbitration may not. Indeed, many of
these courts, including the SICC, provide parties with wider opportunities regarding
ease of joinder and consolidation.
International commercial courts promote transparency through proceedings
occurring in open court. This is exemplified through the DIFC even recording
proceedings to be made available online, thereby aligning with principles of open
justice. These judgements may also be made available online in more than one language,
with the Qatar International Court uploading judgments in both Arabic and English. This
broadens public access to judicial reasoning from leading international judges. Despite
this, users are typically given a choice between proceedings being conducted in open or
closed court.
It may be argued international commercial courts are faced with innate
limitations concerning enforceability. A party looking to enforce a court judgement in
another nation may face difficulties where there are no reciprocal enforcement
agreements established between the two countries. Contrastingly, arbitration offers
parties unparalleled enforcement prospects under the New York Convention, with 172
nations being parties to the instrument as of 2023.76 However, the judgements of
international commercial courts are becoming increasingly enforceable, as The Hague
Convention on Choice of Court Agreements continues to be adopted by states.77 The
instrument facilitates enhanced enforcement and greater certainty to international
litigants, now ratified by the EU, Mexico and Singapore.78 Therefore, whilst arbitration
may be considered superior in this aspect, the perceived limitation of commercial courts
will likely dissolve over time.
Ultimately, flexibility remains the key differentiating factor separating
arbitration, which may be effectively leveraged with the cooperation of legal counsel
and proactive tribunals. Whilst courts operate within the frameworks of established
rules, despite innovation becoming increasingly prevalent, arbitration is inherently a
product of party autonomy. To maintain its long-standing success, protecting the
inherent flexibility of arbitration remains pivotal.
Conclusion
The complexity inherent to construction disputes can materialize in several
forms. This is demonstrated through the nature of multi-party proceedings within
complex construction disputes, the volumes of documentary evidence associated with
large-scale construction projects, and the lengthy nature of hearings consequential to
construction disputes. Nevertheless, the complexity of construction arbitrations may be
successfully managed through arbitral tribunals establishing a renewed focus upon

75
Chief Justice Tom Bathurst, 'Benefits of Courts such as the Singapore International Commercial Court (SICC)'
(Speech delivered at Sydney Arbitration Week, Sydney, 1 November 2016) 3.
76
United Nations Commission on International Trade Law, Status – Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York, 1958) (2023).
77
Convention on 30 June 2005 on Choice of Court Agreements, concluded 30 June 2005 (entered into force 1
October 2015).
78
Parliamentary Joint Standing Committee on Treaties, Parliament of Australia, Choice of Court Agreements –
Accession (2016) Parliament of Australia 1.

26
principles of efficiency and flexibility, demonstrated through the appropriate use of
expert evidence and witness statements, coupled with effective document management,
to mitigate risks of delayed proceedings and exceedingly high costs.

© Copyright reserved by Doug Jones 2023

27
Complex Construction
Arbitration
Professor Douglas Jones AO

English Vietnamese interpreting is available throughout the 1 program

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KEY ISSUES

1. Document Management in Multi-Party Proceedings

2. Witness Statements
3. Expert Evidence
4. Chess Clock Procedure
5. Innovation in Arbitration

English Vietnamese interpreting is available throughout the 2 program

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28
 KEY ISSUES

1. Document Management in Multi-Party Proceedings

2. Witness Statements
3. Expert Evidence
4. Chess Clock Procedure
5. Innovation in Arbitration

English Vietnamese interpreting is available throughout the 3 program

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Multi-Party Construction
• Numerous participants in all modern construction projects – from traditional to the ‘megaproject’

• High volume of data

• Requires effective data management

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29
 Document Disclosure
• Continuing challenge in complex construction arbitration

• Multiple disputed requests for document disclosure by parties

• Proactive case management and requests limited to necessary information to achieve procedural
clarity

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES

1. Document Management in Multi-Party Proceedings

2. Witness Statements
3. Expert Evidence
4. Chess Clock Procedure
5. Innovation in Arbitration

English Vietnamese interpreting is available throughout the 6 program

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30
 Witness Statements
• Facilitates a more focused cross-examination and promotes arbitral efficiency, reducing costs and
delays

• Have become an additional form of legal submissions

• Needs to be evidence

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES

1. Document Management in Multi-Party Proceedings

2. Witness Statements
3. Expert Evidence
4. Chess Clock Procedure
5. Innovation in Arbitration

English Vietnamese interpreting is available throughout the 8 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

31
 Expert Evidence
• Party-appointed experts – challenges of bias

• Tribunal-appointed experts – issues surrounding lack of party approval

• Expert evidence may be effectively managed through early-stage proactivity

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES

1. Document Management in Multi-Party Proceedings

2. Witness Statements
3. Expert Evidence
4. Chess Clock Procedure
5. Innovation in Arbitration

English Vietnamese interpreting is available throughout the 10 program

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32
 Chess Clock Procedure
• Time management procedure to contain the length of hearings

• Creates a more focused examination of key issues and emphasizes efficiency

• Needs to recognize needs of due process

English Vietnamese interpreting is available throughout the 11 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES

1. Document Management in Multi-Party Proceedings

2. Witness Statements
3. Expert Evidence
4. Chess Clock Procedure
5. Innovation in Arbitration

English Vietnamese interpreting is available throughout the 12 program

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33
 Innovation in Arbitration
• Advent of international commercial courts to resolve cross-border infrastructure disputes

• Promotes transparency through open court proceedings

• Greater capacity for joinder

• However, flexibility and party autonomy continue to distinguish arbitration

English Vietnamese interpreting is available throughout the 13 program

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Professor Doug Jones AO

www.dougjones.info

English Vietnamese interpreting is available throughout the 14 program

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34
PHIÊN 1: NHỮNG VỤ TRỌNG TÀI XÂY DỰNG PHỨC TẠP -
CÂU CHUYỆN CỦA CÁC TRỌNG TÀI VIÊN GIÀU
KINH NGHIỆM

PANEL 1: COMPLEX CONSTRUCTION ARBITRATION -

STORIES FROM SENIOR ARBITRATORS

35
 Trinh Nguyen
Moderator Founding partner of TNP Law
Vice chairperson of SCL Vietnam

Trinh Nguyen is one of few lawyers with dual qualification in Australia and
Vietnam. Over the past 20 years, Trinh worked at international law firms prior to being
a partner at a large national firm. In 2007, Trinh set up TNP focusing on Infrastructure
projects, land-based and sea-based construction contract advisory. She also acts as lead
counsel in international arbitration with respect to multi-million dollars disputes arisen
from sea-based construction projects and complex cross-border investment disputes
issues.
Trinh has served two terms as a Vice Chair of Cross-Border Investment
Committee under IPBA and has contributed Vietnam Chapter Kluwer Law for
Commercial Litigation Publication. Trinh is the first female Fellow of Vietnam in the
Chartered Institutes of Arbitrators and Accredited mediator at VMC. Trinh currently
serves as the first Chairperson of Vietnam Chapter of CIArb and is listed on the ’panel
of arbitrator at KCAB INTERNATIONAL and THAC.

36
 Speaker: Amanda Lees Speaker: Peter Scott Speaker: Tan Cheng Hye Moderator: Trinh Nguyen
Caldwell Johnny

International Arbitration Chartered Arbitrator Independent Arbitrator / TNP Law- Partner

Partner at King & Wood Mediator SIMI & SMC Accredited SCL Vietnam,
Mallesons Dispute Board Member Mediator / Adjudicator Vice chairperson

Complex construction arbitration - stories from senior arbitrators

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KEY DISCUSSION POINTS

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37
 SIX TOPICS FOR DISCUSSION
• Tribunal composition
• Case management – control of the arbitral procedure
• Case management – control of the document disclosure
process
• Tribunal management of expert evidence
• Factual witnesses
• Identifying the essential issues
English Vietnamese interpreting is available throughout the 3 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Tribunal composition
In complex construction disputes the issues in dispute are likely to be
both legal and technical.

• Should all the arbitrators be legally qualified?

• How should parties and institutions achieve greater diversity in
tribunal composition?

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

38
 Case management by the tribunal
- the arbitral procedure
• How do arbitrators strike the balance between being
proactive and respecting party autonomy?

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Case management by the tribunal

– document disclosure process
In complex construction disputes there is a large volume of
documents accumulated over the life span of the project.

 How can the tribunal better manage the requests for disclosure
of documents?

English Vietnamese interpreting is available throughout the 6 program

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39
 Tribunal management of expert evidence

Expert evidence is critical in complex construction disputes.

• Is expert evidence helpful to arbitrators and how should it be

managed?

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Tribunal management of expert evidence

The most common form of expert evidence is through party-
appointed experts.

• How can the tribunal mitigate the advocacy of party appointed

experts?

English Vietnamese interpreting is available throughout the 8 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

40
 Factual witnesses

Often witness statements are used to make additional submissions

rather than an account of what the witness saw, heard or did.

• What do tribunals expect from witness statements and witnesses?

English Vietnamese interpreting is available throughout the 9 program

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Identifying the essential issues in the arbitration

There are multiple cases statements and witness statements in a

construction arbitration.

• How should the tribunal ensure that the parties identify the
essential issues in complex constructions disputes for resolution in
the award?
English Vietnamese interpreting is available throughout the 10 program
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41
 Amanda Lees
International Arbitration Partner at King & Wood Mallesons

Amanda leads the South-East Asia Disputes team of King & Wood Mallesons.
Having been based in Singapore for 11 years and with more than 22 years’ experience
in dispute resolution in the region, Amanda is an expert in international commercial and
investment treaty arbitration in the Asia Pacific region. She also acts as international
counsel in complex cross border litigation including instructing on proceedings in the
Singapore International Commercial Court appealed to the Court of Appeal.
Amanda acts as counsel in large complex disputes across a range of industries,
with a particular focus on construction, infrastructure, energy and resources and
technology disputes.
Amanda represented the Republic of Indonesia as advocate in its successful
defence of a US$580 million claim under the India-Indonesia BIT, which was arbitrated
under the UNCITRAL Rules and administered by the PCA.
Amanda sits as an arbitrator regularly (including on a number of Vietnamese
disputes) and has had 22 appointments as arbitrator by SIAC, ICC and LCIA, including
as emergency arbitrator, expedited arbitrator and presiding arbitrator. Amanda is listed
on the panels of SIAC, HKIAC, ICDR (AAA) and JCAA.
Amanda is a Fellow and Director of the Chartered Institute of Arbitrators in
Singapore and Fellow of the Singapore Institute of Arbitrators. As part of the CIARB
Faculty, Amanda has taught international arbitration to hundreds of lawyers and other
professionals throughout Asia.
She is a regular speaker at international conferences, has published widely on
international arbitration and is ranked as a leading individual for international arbitration
by Legal 500 and ‘most in-demand arbitrator’ in Chambers Global.

42
COMPLEX CONSTRUCTION ARBITRATION – 6 TOPICS FOR DISCUSSION

Peter Scott Caldwell

Director of Caldwell Ltd

Peter Scott Caldwell is regularly appointed as arbitrator, mediator, dispute board

member and adjudicator on a wide variety of disputes or projects in various Asian
jurisdictions involving parties from around the world.
Peter is a Chartered Engineer with many years’ experience in managing major
civil engineering works. He is also a Chartered Arbitrator and accredited mediator.
Peter was a member of the working party which drafted the first edition of the
IBA Rules for the Taking of Evidence in International Commercial Arbitration.
He is a board member of the Dispute Resolution Board Foundation Region 2 and
of the Scottish Arbitration Centre, an Arbitrator Member of the Society of Construction
Arbitrators and a member of the ICC Commission on Arbitration and ADR.
He is a former Secretary-General of Hong Kong International Arbitration Centre
and a founder member and past chair of the Society of Construction Law Hong Kong.

43
Complex Construction Arbitration
– 6 Topics for Discussion
Peter Scott Caldwell

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

SIX TOPICS FOR DISCUSSION

1 Tribunal composition
2 Case management – control of the arbitral procedure
3 Case management – control of the document disclosure process
4 Tribunal management of expert evidence
5 Factual witnesses
6 Identifying the essential issues

English Vietnamese interpreting is available throughout the 2 program

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44
 1.Tribunal composition
Should all arbitrators be construction professionals? (cont.)
• Few construction cases where cause of dispute is legal interpretation.
• Legal issues must be interpreted under applicable law & only lawyers qualified in applicable
law qualified to interpret.
• Most arbitrations arise from events on or off site that impact progress & increase cost.
• Disputes often described as technical disputes, but academic knowledge of engineering /
architecture unlikely to assist in understanding complex factual matrix.
• Understanding requires experience - not technical qualifications.

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

1.Tribunal composition
Should all arbitrators be construction professionals?
• Many construction lawyers after many years involved with construction industry more
easily understand issues than fresh engineering graduates.
• Dual qualifications engineering / law: No guarantee of having required skillset to arbitrate
complex construction disputes.
• Experienced engineer / architect sitting as arbitrator may have gained experience of the law
in variety of jurisdictions.
• Concern: Some lawyers, with no construction background, accept appointments as
construction arbitrators but may not understand the evidence. Does this serve the
construction industry’s needs?
English Vietnamese interpreting is available throughout the 4 program
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45
2. Case management – control of the arbitral procedure
What is party autonomy?
• • Parties choose arbitration over court. Most arbitration laws respect parties’ right to craft
arbitration procedure suited to their requirements. Often called ‘party autonomy’.
• • Party autonomy extends beyond arbitration agreement to agreeing procedure after
arbitrators are appointed.
• • Once tribunal empanelled, arbitrators typically have a duty to ensure cost-effective &
timely completion of the arbitration.
• • Time & cost duty arises from applicable arbitration law or relevant arbitration rules to
which parties have agreed.

English Vietnamese interpreting is available throughout the 5 program

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2. Case management – control of the arbitral procedure

What is party autonomy? (cont.)
• Tension may arise between arbitrators respecting parties’ autonomy & exercising their
duty under the law or rules to avoid unnecessary delay or expense.
• Tribunal must be sensitive to conflicting needs & interests of each party & not seek to
impose unduly demanding requirements while ensuring that process does not fall into delay
or waste money.
• A party that does not want the arbitration to reach an award may indulge in irresponsible
or unethical means to achieve delay. “Guerrilla tactics”.
• A party using guerrilla tactics may push the tribunal into overreacting. A tribunal which
overreacts may make itself vulnerable to challenge on grounds of bias.

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

46
2. Case management – control of the arbitral procedure
What is party autonomy? (cont.)
• It is often suggested that some arbitrators are so timid about controlling arbitral process
for fear of being removed or their awards being challenged that they allow a party wishing to
delay or disrupt the arbitration free rein to delay the process. “Due process paranoia”.
• “Guerrilla tactics” & “due process paranoia” are opposite sides of the same coin.
• Arbitrators must balance need for speed & economical process against legitimate
interests of the parties to respond to problems that arise along the way.
• Parties must be given the opportunity to present their respective cases. What is
reasonable & what is unreasonable is a matter of arbitral judgement.

English Vietnamese interpreting is available throughout the 7 program

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2. Case management – control of the arbitral procedure

What is party autonomy? (cont.)
• There is a danger that inexperienced arbitrators having read about avoiding “guerrilla tactics” &
“due process paranoia” will feel that every application for a change to the arbitration timetable is an
example of guerrilla tactics & to grant any request is to succumb to due process paranoia.
• Emphasis is on the tribunal being proactive in setting procedures which are suitable for the
particular case & fixing a timetable which is realistic but not unreasonably short.
• By taking a proactive approach, arbitrators usually can tease out compromises acceptable to all
parties.
• It is usually easy to arrange a video meeting to discuss procedure rather than by exchange of
correspondence. By video much more about the parties actual concerns can be understood.

English Vietnamese interpreting is available throughout the 8 program

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47
3. Case management – control of the document disclosure process
• Common law systems generally require each party to produce all documents which are
relevant to the case whether they help the party holding the document or are damaging to its
case.
• Under most civil law systems there is no obligation on a party to voluntarily disclose all
relevant documents. Parties can select the documents which support their case.
• In international arbitration the tribunal may commonly order a party to disclose a
document requested by another party
• Redfern schedule used to tabulate request for documents disclosure. Requesting party
must show both materiality and weight of requested document.

English Vietnamese interpreting is available throughout the 9 program

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3. Case management – control of the document disclosure process

(cont.)

• Too often, disclosure requests are used as a delaying tool by a respondent that has no
interest in completing the arbitration.
• Conversely, legitimate requests for documents may be resisted because the holder of the
documents is unwilling to produce documents which are prejudicial to its case.
• Parties seldom refuse to produce an ordered document. Commonplace for excuses to be
made, such as the document cannot be found or the document never existed.

English Vietnamese interpreting is available throughout the 10 program

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48
3. Case management – control of the document disclosure process
(cont.)

• Arbitrators can take an adverse inference when a document is not disclosed. What does
that mean? Does it mean that an arbitrator can assume that the document did exist and
would have supported the case of the party that wanted the disclosure?
• Should an award be influenced by conjecture about the contents of a document the
tribunal had not seen?

English Vietnamese interpreting is available throughout the 11 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

4. Tribunal management of expert evidence

Is expert evidence helpful to arbitrators and how should it be
managed?
• Consequential changes in construction arbitration which has accompanied the decline in
the number of construction professionals as arbitrators is the rise in the use of expert
evidence.
• In the past it was assumed that a construction professional sitting as an arbitrator could
generally understand the evidence and did not need the assistance of experts.
• Two drawbacks:
o greatly increases the cost of arbitration;
o encourages lawyers, with little construction experience, to believe that, with the experts’
assistance, they will be able to understand the evidence. 12
English Vietnamese interpreting is available throughout the program
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49
 4. Tribunal management of expert evidence
Is expert evidence helpful to arbitrators and how should it be
managed?
• Although overused in construction arbitration, expert evidence is very helpful:
o in analysing data which I could not be easily analysed by the tribunal; and
o in giving a spectrum of views which allows the tribunal to arrive at a balanced view.
• A tribunal with no knowledge of the expert area, almost inevitably, will adopt the
evidence of the expert who better presented the expert evidence.

English Vietnamese interpreting is available throughout the 13 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

4. Tribunal management of expert evidence

Is expert evidence helpful to arbitrators and how should it be
managed?
• Although overused in construction arbitration, expert evidence is very helpful:
o in analysing data which I could not be easily analysed by the tribunal; and
o in giving a spectrum of views which allows the tribunal to arrive at a balanced view.
• A tribunal with no knowledge of the expert area, almost inevitably, will adopt the
evidence of the expert who better presented the expert evidence.

English Vietnamese interpreting is available throughout the 14 program

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50
 5. Factual witnesses
• In traditional inquisitorial civil law courts, witness evidence in construction matters has
been considered secondary to documentary evidence.
• Common law courts relied on witnesses giving their evidence orally in an adversarial
procedure.
o Firstly: Witness would be asked questions by the advocate for the party that had called the witness.
(Evidence-in–chief.) Questions were not allowed to lead the witness towards an answer to the question.
o The opposing party’s advocate would then cross-examine the witness seeking to demonstrate flaws in the
witness’s testimony.
o Finally the original advocate could re-examine the witness on points that had arisen during cross-
examination.
o In complex construction cases this usually was a lengthy procedure.

English Vietnamese interpreting is available throughout the 15 program

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5. Factual witnesses (cont.)

• Factual witnesses are required to say what they remember happened in relation to the
events which have given rise to a dispute.
• Factual witnesses to give their opinion of what the contract states.
• Factual witnesses are not advocates for the party that has called them as witnesses.
• To save time in a hearing, the use of witness statements was introduced where the
witness was required to tell the tribunal, in writing, what they would have said if they were
giving evidence-in-chief orally.

English Vietnamese interpreting is available throughout the 16 program

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51
 5. Factual witnesses (cont.)

• Written witness statements are now normal practice in international construction

arbitration
• Written witness statements, resulted in hearings being much shorter than they were in
the past where common law procedures were adopted.
• Witness statements are usually exchanged well in advance of an evidentiary hearing
allowing the parties to plan their respective cases based on the witness statements reducing
the element of surprise when a witness said something unexpected whilst giving evidence-in
chief.

English Vietnamese interpreting is available throughout the 17 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

5. Factual witnesses (cont.)

• These are the obvious advantages of witness statements. However, as Professor Doug
Jones says in his written paper:
“Sadly, they have evolved from a brief recount of a factual witness’ memory of the events, into a
combination of legal submissions, comments upon documents that speak for themselves (even
those not previously seen by the witness prior to arbitral proceedings), and speculation across
many things, including the overarching merits of a dispute.”
• Witness statements, almost invariably, are written by the legal team of the party calling
the witness. Many practitioners feel that the witness statement train has gone off the rails.
The problem is how to get it back on the track.

English Vietnamese interpreting is available throughout the 18 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

52
 5. Factual witnesses (cont.)

• Factual witnesses often only asked to give evidence once in lifetime.

o Many witnesses from the construction industry have little experience of writing succinct reports.
o Frequently, the language of the arbitration is not their mother tongue but they may be sufficiently fluent in
the language of the arbitration to feel they can give evidence in the language of the arbitration.
o In everyone’s interest that such witnesses should be assisted in writing brief statements of what they
remember.

English Vietnamese interpreting is available throughout the 19 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

6. Identifying the essential issues

How should the tribunal ensure that the parties identify the essential
issues in complex constructions disputes for resolution in the award?
• International Chamber of Commerce rules generally require the parties and the tribunal to
agree a list of issues to be determined by the Tribunal within 30 days of the file being received
by the arbitrators.
• Some commentators consider this to be too early to agree a list of issues.
• Early agreement of issues is particularly useful if the parties’ representatives are not
experienced construction lawyers.

English Vietnamese interpreting is available throughout the 20 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

53
 6. Identifying the essential issues

How should the tribunal ensure that the parties identify the essential
issues in complex constructions disputes for resolution in the award?
• Agreeing a list of issues early allows tribunals to assist the parties to focus on the issues
which divide them resulting in more focussed Statements of Case.
• Where the parties have experienced counsel, issues are usually well defined in the
Statements of Case. There is no need for a list of issues to be agreed at the first case
management conference.

English Vietnamese interpreting is available throughout the 21 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Thank you!

English Vietnamese interpreting is available throughout the 22 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

54
AVOIDING AND RESOLVING COMPLEX CONSTRUCTION DISPUTES
& ROLE OF CONSTRUCTION PROFESSIONALS IN
COMPLEX CONSTRUCTION DISPUTES

Tan Chenh Hye Johnny

Independent Arbitrator
SIMI & SMC Accredited Mediator
Adjudicator

Johnny obtained his first degree in Architecture from the University of Western
Australia. He was a founding partner of LT&T Architects where he practised for almost
30 years. Johnny practises as an independent arbitrator. He is a Past President of the
Singapore Institute of Arbitrators (SIArb), having served two terms as President from
2007 to 2011.
Johnny is on the panel of several arbitration centres including SIAC, AIAC,
HKIAC, DIAC, SCIA, and LCIA. He is a member of the Advisory Council to the
National Commercial Arbitration Centre, Cambodia.
An accredited mediator with SIMI, Johnny is a Principal Mediator with several
mediation centres including the SMC, CCPIT/CCOIC Mediation Centre, MHJMC,
JIMC (Kyoto), IDDRMI, and SCMC.
An accredited adjudicator, Johnny also sits on the Construction Adjudicator
Accreditation Committee (CAAC) and the Singapore Infrastructure Dispute Protocol
Advisory Committee.
Johnny has held various positions in the Singapore Institute of Architects (SIA)
and served as its Vice-President from 1998 to 2000.
Johnny has been appointed as arbitrator in both institutional and ad hoc
arbitration cases. He has also been appointed as adjudicator as well as review adjudicator
in several adjudication applications.

55
1. Construction projects are increasingly complex. Complex construction projects
necessarily mean complex planning, voluminous documentation, and
complicated overlapping multi-party execution. An oversight or lack of
attention at any of these stages can lead to disputes which if not resolved early
can escalate into complicated disputes, increased costs and a breakdown in the
parties’ communication and relationships.
2. Thus, it is to everyone’s interest to the extent possible to minimise such
conflicts. When they do occur to resolve them early before they escalate into
large, complicated claims and counterclaims.
3. This presentation discusses complex construction disputes from three
perspectives.
a. Avoiding and minimising complex construction disputes,
b. Resolving complex construction disputes, and
c. Role of construction professionals in complex construction disputes.
Avoiding and minimising complex construction disputes
4. Large construction projects normally involve numerous parties, with thousands
of linked activities each dependent on the other, with voluminous documents
and a multitude of contractual and technical issues.
5. Any breach of a term of contract by any party to a contract or sub-contract can
have ripple effects on the other parties with implications to the completion of
the entire project within time and budget leading to conflicts.
6. Unresolved conflicts generally result in complex litigation or arbitration.
7. Parties prefer to avoid conflicts. One could think of several reasons why
conflicts should be avoided in construction projects: complex or otherwise. One
obvious reason is that future work may depend on present and past
relationships. Especially for large complex projects where the contracting
parties are likely to be limited to those with the capabilities, experience, and
financial resources to undertake such projects. Another is the complexity of
technical and financial matters associated with large construction projects.
Hence, parties generally seek to avoid construction disputes because it can
reduce project profits, damage existing and future relationships with owners,
contractors, sub-contractors, suppliers, consultants, and other participants of
construction projects.
8. It may be argued that the seeds for construction disputes are sowed long before
the parties even enter the contract.
Competitive Nature of Construction Procurement
9. In many large construction projects, the favoured procurement method is
competitive in nature. Regardless of whether it is the traditional tender and
build, design and build, design build operate and transfer, or public private
partnership procurement system, they are all essentially competitive in nature
with the best offer being awarded the project.
10. This may lead to an “over promise under delivery” outcome. This is because in

56
 the eagerness to secure the project, bidding parties may under price and over
promise the project delivery. Owners and employers on the other hand want to
get the best deal they can for their project.
11. As both parties’ objective is to maximise profit at the most competitive price,
there exists an expectation gap from the inception of the project. Unless this
expectation gap is managed realistically, there will be potentials for claims and
crossclaims in the course of the project.
Adequate Time for Design and Contract Documentation
12. Next, it cannot be overstated the importance of allowing adequate time for the
parties to conduct thorough feasibility studies, explore design options, develop
design concepts and preparation of tender documents.
13. Inadequate time during this preparation phase, may eventually result in
problems downstream. Faced with time pressure, construction professionals
may overlook errors in designs and tender documents. Erroneous design
assumptions and details may not be spotted resulting in design changes during
construction. This may lead to claims for additional costs. Design and
documentation oversights may also cause delays to the construction works.
Design errors if not addressed may result in costly rectification works with
considerable delays to project delivery. In some instances, they may have
serious safety implications.
14. In many instances, where design professionals are faced with inadequate time,
they tend to leave the design of construction details to be developed during the
construction phase. This can potentially create ambiguities in what the
contractors are expected to deliver since the details will not be known until the
work is in progress. This can lead to disputes on whether the detailed design
constitutes additional works or works that is within the original scope and the
detailed design is nothing more than providing additional information to aid the
contractor in execution of the works.
15. Further, if these detail design developments are not issued timely, it would also
have an impact on the progress of the works with consequential impact on its
completion and thereby giving rise to claims for delays and extensions of time,
prolongation, and acceleration.
16. Hence, it is essential that sufficient time should be allowed at the pre-contract
phase for professionals and builders to thoroughly investigate and explore
design options, develop preliminary design concepts into well documented
construction drawings that are buildable and cost-effective
Setting Realistic Contract Period
17. Another potential area for dispute is when the contract period is unrealistic.
18. Longer construction time means higher financing cost to a developer. For the
contractor, it means higher on-site overheads, preliminary and staff costs. They
affect the profit margins. When the completion date is passed, there will be
claims and crossclaims for delays, prolongation, and acceleration. Such claims
are complex and time-consuming. Construction professionals and their clients
should consider carefully before setting the time for completion of the project.

57
 They should consider not just the scope of the works but also the complexity of
the project, the constraints the site poses and any other external factors that
may have an impact on project delivery. They should also consider whether the
works should be phased, and if so, how it should be phased.
19. A shorter construction time does not necessarily result in lower costs. It is a
well-known fact that when the contract period is too short, contractors would
build into the pricing costs for additional resources (both equipment and
labour), overtime work, and in extreme cases even factor in the ascertained
liquidated damages they may have to pay in the event the project is not
completed on time.
Clear and Fair Allocation of Risks
20. Risk allocation is another factor that needs to be carefully considered.
21. Risk, in the context of construction project, can be defined as ‘an uncertain
event or set of circumstances that, should it occur, will have an effect on the
achievement of one or more of the project’s objectives’.1
22. Risk exists as a consequence of uncertainty, and such risk must be managed.2
23. Many construction disputes may be avoided if there is clear, unambiguous, and
fair allocation of risks. Contracting parties are only able to price in their risks
where there is clear, unambiguous, and fair allocation of risks.
24. Often where there is an unequal bargaining power, the one with the greater
power has more say in the allocation of risks. Those with less power will have
less say in negotiating risk allocation.
25. Common risks in construction projects include weather, unexpected conditions,
errors in cost estimating and/or scheduling, delays, financial support, strikes,
lockouts, faulty materials, faulty workmanship, faulty designs, operational
problems, inadequate plans and/or specifications, natural disasters, force
majeure and most recently Covid-19.3
26. Typically, it is the employer who is in the position to determine the allocation
of risks. While it is tempting for employers to allocate all the risks to the
contractor, doing so may result in no bid submissions or an increase in cost that
makes the project financially non-viable.
27. Generally, in allocating risks in a construction project, the parties should consider
the following:4
a. Which party can best control the risk and/or its associated consequences?
b. Which party can best foresee and bear the risk?
c. Which party ultimately most benefit or suffer when the risk happens?

1
Simon, Peter, Hillson, David and Newland Ken (1997). “Project Risk Analysis and Management Guide,
Association for Project Management”, p. 17
2
Norris, Catriona, Perry, John and Simon, Peter (2018). “Project Risk Analysis and Management Mini-Guide,
Association for Project Management”, p.4
3
Larves, Samuel and Huges, Will (2006). “The Price of Risk in Construction Projects” p. 563
4
Brunni, Neal, (2009) “The Four Criteria of Risk Allocation in Construction Contracts”, International
Construction Law Review Vol 20 Part 1 p. 6

58
 28. Proper risk identification and equitable allocation of risk is important for the
effective, timely and efficient delivery of the project.5
29. Standard forms of contract attempt to find a fair and balanced allocation of
risks. Tempting as it may be parties are well advised to avoid re-writing the
allocation of risks as these standard forms are written such as to balance the
risks fairly between the employer, contractor and sub- contractors.
30. Generally, in the absence of bad faith, a contract that balances the risks
fairly will lead to a reasonable price, quality performance and minimum
disputes.6
Close Monitoring and Project Management during Construction
31. No matter how well the contract is drafted, disputes can still occur if project
managers and site staff do not follow the contractually agreed protocols. For
example, trouble can brew if site staff and project managers do not observe the
agreed protocols for work approval, variation orders approval process etc. This
means complying with notices and approval requirements and documenting
additional costs accurately.
Maintaining an Accurate and Updated Schedule
32. It is almost impossible to assess and determine the impact of delay claims or
variations without an accurate baseline program agreed and accepted by all
parties at the start of the project.
33. A good baseline program must state not just the planned work schedule and
critical paths but must also state the planned resources allocated for the
planned work schedule. It serves as a tool for identifying causes of delays early
and taking steps to mitigate and minimise them before they lead to potential
disputes.
34. When workflow falls behind schedule, the construction program should be
regularly updated with planned reallocation of resources and adjustments to the
schedules.
35. This can reduce any potential dispute on the effects of Contractor Risk Events
versus Employer Risk Events and the effects these have on floats.
Good Record Keeping
36. The importance of thorough documentation cannot be overstated. Taking
photographs of periodic stage of work, records of dates and times of
instructions, getting signatures for approval forms etc are important. It gives
everyone a record of the status of works on site and reduces any “you say, I
say” disputes.
37. Some see documentation as an ammunition for disputes. On the contrary, its
goal is to have accurate contemporaneous record to avoid disputes.
Timely Payment

5
Shapiro, Bryan KC (2010). “Transferring Risks in Construction Contracts” p.5
6
Lane, Patrick SC (2005) “The Apportionment of Risk in Construction Contracts”, International Conference on
Arbitration and ADR in the Construction Industry, Dubai.

59
 38. One of the best ways to avoid disputes is for everyone in the construction chain
to make payment timely.
39. Cash flow is the lifeline of every contractor, sub-contractor, supplier, and
consultant in the construction chain. Payment delays can crush a company’s
cash flow. In some jurisdictions, like Singapore, Australia, New Zealand and
Malaysia, there is a statutory adjudication regime that ensures that parties that
have carried out construction work is entitled to timely payment.
40. While there is no statistically collated data, anecdotally, it is said that statutory
adjudication regime has reduced the number of disputes post contract
completion.
Resolving Complex Construction Disputes
41. However, despite the best of intentions and applying all the above,
complexities and uncertainties in the construction process may still lead to
construction disputes. The measures above may at best mitigate and reduce
disputes. The next section discusses resolving disputes when they occur.
42. There are several modes for resolution of construction disputes.
43. Most standard forms of construction contracts provide for some form of
alternative dispute resolution (ADR). This may be in the form of dispute board,
mediation, or arbitration or a combination of such ADR mechanisms.
44. This presentation focuses on arbitration as the alternative dispute resolution for
complex international construction disputes. In particular, I will discuss three
aspects of arbitration that I believe are particularly relevant to complex
construction arbitrations.
Arbitration
45. Arbitration is a consensual contractual dispute resolution mechanism. It is
dependent on the existence of an agreement between the parties.7
46. Arbitration clauses have been incorporated into standard contracts and are
widely used in the construction industry today for both private and public
contracts.
47. It is a process wherein opposing parties submit their dispute or conflict for a
binding determination by a sole arbitrator or an arbitral tribunal. It is conducted
in accordance with procedural rules set out in established arbitration centres
such as ICC, SIAC, HKIAC and VIAC.
48. A key advantage in arbitration is the principle of party autonomy and flexibility.
Picking the Tribunal
49. Party autonomy allows the parties to nominate and appoint their arbitrators and
if not agreed then the selected appointing body appoints.
50. Parties in a complex construction arbitration should take advantage of this and
pick the right arbitrator to fit the nature of their dispute. Where the dispute
involves complex legal issues, nominate a lawyer arbitrator with experience in
7
Battelle, A. E, and Dettman, K. L. (1993). ‘‘Alternate dispute resolution at the central artery/tunnel project.’’
Construction Superconference, November 11, 1993, San Francisco.

60
 construction disputes. Where the dispute involves complex technical issues,
then parties should consider a technical arbitrator with relevant expertise,
competent in arbitration procedural rules and law and construction law.
51. In arbitrations where the arbitration agreement provides for a tribunal of three,
there is an even stronger case for parties to have a tribunal with mixed
disciplines in construction and the law.
52. Unfortunately, invariably when one party nominates a lawyer or a KC, the
other party would likewise nominate another lawyer or KC, and between them,
they would nominate another lawyer or KC.
53. In my view, it cannot be overstated that parties should take advantage of the
principle of party autonomy to pick the right arbitrator for the nature of
dispute.
Expert Witness & Hot-tubbing
54. I now turn to the principle of flexibility in arbitration.
55. Flexibility in the hands of an experienced arbitrator would allow the arbitrator
to choose procedure that is most suitable for the nature of the disputes.
56. Many construction arbitrations involved evidence from construction
professionals involved in the project as well as independent experts appointed
by the parties to provide expert opinions. Often tribunals would hot-tub experts
to hear them simultaneously rather than sequentially to better understand the
areas where they disagree and the reasons for their disagreement.
57. When hot-tubbing is coupled with industry experts on the tribunal, it allows for
a more robust discussion of the technical issues in dispute. The technical
professionals on the tribunal would greatly assist the tribunal to explore and
discuss the views of the experts and come to a better understanding of their
differing opinions.
Multi-party arbitrations
58. Another common feature of the construction industry is the existence of chain
contracts between employers and contractors and contractors and sub-
contractors, and sub-contractors and sub-sub-contractors and so on. In disputes
that involve multiple chain contracts, to save time and costs and to avoid
inconsistencies in outcome, it may be desirable for such multi-party arbitrations
to be consolidated and/or joined.
59. Most major complex construction contracts would use one of the standard
forms of contract which would have standard arbitration agreements
incorporated into the contract. It is important that parties provide in the
arbitration agreement an institutional arbitration rule that provides for multi-
party arbitration. (See ICC Rules Art. 9, VIAC Rules Art. 6)
60. However, some sub-sub-contracts maybe bespoke contract, in such instances
the parties drafting such bespoke contract should incorporate into the contract
an arbitration agreement that is compatible with the main contract that allows
for consolidation and/or joinder of multi- parties.
Roles of Construction Professionals in complex construction disputes

61
61. I now turn to the role that construction professionals can play in complex
construction disputes. By construction professionals, I am referring not only to
consultants and the parties’ professional staff on the job but also third-party
neutrals.
Factual Witness
62. Construction professionals and project consultants on the job are best placed to
give factual accounts of events.
63. In order to do this accurately and well, the importance of thorough
documentation cannot be overstated. As discussed in the previous section, an
accurate record of events when they occur will reduce any “you say, I say” of
an account of events at the arbitration hearing.
64. The goal is to have an accurate contemporaneous record to assist tribunals to
make findings of facts. Where these are well documented, the documents speak
for themselves and the need for oral evidence will be reduced with considerable
savings in time and costs.
Expert Witness
65. Another role that construction professionals can play in complex construction
disputes is to provide expert opinions on the issues in dispute.
66. Very often disputes occur because the professionals involved in the project do
not share the same views on a particular technical issue or the way the
contractual documents ought to be interpreted or whether the method of
construction applied is the correct method. This is where the view of an
independent impartial expert is helpful to the tribunal.
67. Such experts owe a duty to the tribunal to assist the tribunal to understand the
issues and come to a decision. Although they are engaged and instructed by the
parties and/or the counsel for the parties, their duty is to be to the tribunal and
not to the party who appoints them.
68. Tribunal are more likely to give more weight to the evidence of experts who do
not act as advocates for the parties who appoint them.
69. Unfortunately, in many arbitrations tribunals have to deal with experts who act
as “hired guns” and act as advocates for the parties who appoint them. This
happens when parties go “expert shopping” and look for experts who hold the
view that supports their case.
70. Another problem that tribunals encounter is when the experts are not the
authors of their own reports. A syndrome, I call the “the singer, not the song-
writer” where the experts reports are produced by someone from their office or
worse when the reports are produced by counsel after an interview with the
experts.
71. Such problems may be reduced, if experts are instructed to produce a joint
report stating their areas of agreement before they produce their own respective
reports stating the areas where they agree and disagree and the reasons for the
disagreement. This will to some extent reduce the potential for someone to
produce the joint report for them. Another advantage of producing a joint report

62
 before their individual reports is that they are more likely to agree with a
fellow expert before they put in writing their own respective views. I have
found that once an expert has expressed his view, he more unlikely to concede
to the views of his fellow expert than if they were given an opportunity to have
a joint meeting and produce a joint report before producing their respective
report.
Arbitral Tribunal
72. Lastly, construction professionals with their industry expertise can add value
to the arbitral process either as sole arbitrators and/or as members of an
arbitral tribunal.
73. I would urge construction professionals to consider a career in arbitration.
Your industry expertise will help the parties to crystalise the issues in dispute
through the eyes of an independent and impartial third-party adjudicator of
their disputes.
74. Having construction professionals on the tribunal will greatly assist the tribunal
to separate the wheat from the chaff when reviewing the experts’ reports and
evidence. Experts are more likely to provide a more balanced impartial view
when they know that there is another expert on the arbitral tribunal.
75. The tribunal would also be assisted by an experience construction professional
during the hot- tubbing and the tribunal deliberations.
Conclusion
76. Let me conclude by sharing the results of surveys conducted by Queen Mary
University of London (“QMUL”). In a 2019 International Survey by QMUL
(in partnership with Pinsent Masons) on international construction disputes, it
found that 63% of respondents stated that having technical knowledge of
construction disputes is a consideration for arbitrator selection. Similarly, in
the 2022 Energy Arbitration Survey by QMUL (in partnership with Pinsent
Masons) 76% of respondents identified the technical expertise of the arbitrators
as the most important procedural element.
77. However in a 2021 survey QMUL (in partnership with White & Case LLP)
found that less than a third of respondents believed that there has been progress
made in respect of diversity in the selection of arbitral panel.
78. Why has there been little progress made in appointing tribunals with diverse
professional backgrounds. I offer three possible reasons:
a. It is difficult to attract construction professionals with successful practice
to move out of their comfort zone into a new area of practice where they
are not sure of getting regular appointments.
b. Most arbitration institutions require that applicants to their panels must
demonstrate having written three awards. If these professionals would
have to be first on a panel and be appointed as arbitrators before they can
produce any award to support their applications. This is a chicken and
egg problem that need to be resolved before we will see more
construction professionals appointed as arbitrators.

63
 c. Finally, parties to rely on their counsel to nominate potential arbitrators
as their party nominated/appointed arbitrator. As observed earlier, there is
a trend for counsel for the parties to nominate and appoint as party
arbitrators, lawyers they are familiar with and such party nominated
arbitrators tend to nominate and appoint another lawyer as the chair of the
tribunal.
79. In conclusion, although arbitration was initially thought to be an inexpensive,
efficient, prompt, private and informal process with decisions made by
experienced industry professionals. Today, there is growing disagreement
whether it is a speedy, economical process as once thought to be. This is
particularly true for complex construction arbitrations with their high technical
complexity, large amounts of evidence, multiple claims or parties and large
sums in disputes.
80. There is a growing trend towards a hybrid Arb-Med-Arb procedure where
arbitration is commenced, then stayed to allow the parties to resolve their
disputes through mediation. If mediation results in a settlement agreement, that
settlement agreement may be recorded as a consent award which is generally
accepted as an arbitral award and enforceable under the New York Convention.
If mediation does not result in a settlement or a partial settlement, then the
remaining dispute can transition seamlessly back to arbitration.
81. An example of such a scheme can be found in the SIAC-SIMC Arb-Med-Arb
Model Clause.8 VIAC has a similar Arb-Med-Arb protocol.9
82. Thank you.

8
https://siac.org.sg/the-singapore-arb-med-arb-clause
9
https://www.viac.vn/en/arb-med-arb-protocol

64
 PHIÊN 2: BÁO CÁO VỀ TRỌNG TÀI TRONG LĨNH VỰC
XÂY DỰNG CỦA ỦY BAN ICC VỀ TRỌNG TÀI VÀ CÁC
PHƯƠNG THỨC GIẢI QUYẾT TRANH CHẤP THAY THẾ

PANEL 2: ICC ARBITRATION AND ADR COMMISSION

REPORT ON CONSTRUCTION INDUSTRY ARBITRATIONS

65
 Abhinav Bhushan
International Arbitrator,
Moderator Member & Chief Executive for Asia at 39 Essex
Chambers,
former Director for South Asia at ICC International
Court of Arbitration

Abhinav is the Chief Executive for Asia for 39 Essex Chambers and is based out
of Singapore. He is also a Member & International Arbitrator at the Chambers. He
regularly acts as an arbitrator in domestic & international arbitrations and is a member
of panel of arbitrator at various international arbitration institutions (for instance, SIAC,
AIAC, SHAC).
Prior to joining the Chambers, Abhinav served as Regional Director for South
Asia, ICC Arbitration & ADR at the ICC International Court of Arbitration in Singapore
(ICC Court). As Director, he focussed on helping companies, investors, and attorneys in
the Region understand how they can efficiently resolve international commercial
disputes by raising their awareness on the ICC’s Dispute Resolution Services and its
commitment to international arbitration, the procedure, and thought leadership. Prior to
serving as Regional Director, he was also the first Indian Deputy Counsel of the ICC
Court in Paris, France, where he gained first-hand experience working on arbitrations
arising out of common law jurisdictions, in particular working with parties from the
United Kingdom, India, Singapore and other regions of Asia.

66
 ADR FOR PREVENTION, MANAGEMENT AND SETTLEMENT OF
DISPUTES ON CONSTRUCTION INDUSTRY IN VIETNAM

Nguyen Manh Dzung

Senior Partner at Dzungsrt & Associates LLC

Mr Nguyen is a senior partner of Dzungsrt & Associates LLC and the Director
of ADR Vietnam Chambers LLC.
Mr Nguyen was an editorial member of the Drafting Committees of the Law on
Commercial Arbitration in 2010, the Governmental Decree no. 22/CP on Commercial
Mediation and the guiding documents, and Civil Procedure Code 2015 on recognising
and enforcing foreign arbitral awards and mediated settlement agreements.
He was the co-founder and vice president of the Pacific International Arbitration
Center (PIAC) and is now listed as an arbitrator of the Vietnam International Arbitration
Center (VIAC), the Korean Commercial Arbitration Board (KCAB International),
Hainan International Arbitration Court (HIAC), Shanghai Arbitration Committee
(SHAC) and Hong Kong International Arbitration Center (HKIAC), as well as an
accredited mediator on the panels of Vietnam Mediation Center (VMC), Mainland
Hongkong joint mediation centre (MHJMC), Japan International Mediation Center of
Japan (JIMC Kyoto) and HIAC International Mediation Center of China.
He is the first Vietnamese Member of the ICC International Court of Arbitration and
ICC Task Force on ADR and Arbitration. He is a frequent speaker on arbitration and
mediation for the Supreme People’s Court, the Ministry of Justice and the Vietnam
International Arbitration Center (VIAC). He has published many publications on
arbitration in Vietnam for the ICCA, Global Arbitration Review (GAR), the World
Arbitration Reporter (WAR) and the IBA, etc.

67
ADR FOR PREVENTION, MANAGEMENT AND
SETTLEMENT OF DISPUTES ON
CONSTRUCTION INDUSTRY IN VIETNAM

NGUYEN MANH DZUNG, MCIArb

Member of ICC Task Force on ADR & Arbitration
Senior Partner, DZUNGSRT & ASSOCIATES LLC

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

01 INTRODUCTION

02 PROACTIVE CONFLICT MANAGEMENT

KEY ISSUES
03 ASSISTED CONFLICT MANAGEMENT

FACILITATING SETTLEMENT IN
04 ARBITRATION

05 RECOMMENDATIONS
English Vietnamese interpreting is available throughout the 2 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

68
1. INTRODUCTION OF ADR IN CONSTRUCTION INDUSTRY

DISPUTE ADJUDICATION MEDIATION

BOARD (DAB)

EXPERT COMBINED ADR:

MED-ARB/ARB-MED-ARB

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

2. PROACTIVE CONFLICT MANAGEMENT

2. Effective dispute
resolution clauses
1. Internal Company
i, effective drafting dispute resolution
policies and procedures clause

ii, early-stage pre-action risk assessment

3. Raising awareness and training.

English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

69
 3. ASSISTED CONFLICT MANAGEMENT

DISPUTE BOARDS

EXPERT PROCEEDINGS

MEDIATION

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

4. ASSISTED CONFLICT MANAGEMENT

DISPUTE BOARD EXPERT PROCEEDINGS MEDIATION

 encourage the parties to overcome  Providing a non-binding  Effective tool in dispute

it on their own. evaluation to the parties on one settlement
 If this is impossible, the dispute or more issues in dispute  Recently, be included in multi-
board can:  Providing a binding expert step dispute resolution clause
a. intervene with informal assistance determination on one or more  Assist parties to mediate or
to help the parties resolve the matter issues in dispute reach a mediation agreement
by agreement, or  Providing an expert opinion for without arbitration and court’s
use in arbitration or litigation proceedings
b. determine a dispute through a
recommendation or a decision issued
after a procedure of formal referral.
English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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 5. FACILITATING SETTLEMENT IN ARBITRATION
Case Management Techniques Mediation

 By the parties
 CMC is the idea time for the tribunal  Using a multi-tier clause.
to include steps providing for  Should be made at the contract drafting and
efficient management of the negotiation
proceedings as well as facilitate
settlement  By the arbitral tribunal
 Is there an obligation for the tribunal to raise
 Bifurcation can be used based on the possibility of a mediation option
case-by-case basis (liability and
 By the arbitral institution
quantum issues)  Should offer both arbitration and mediation
services in which they administer a mediation
concurrently with the arbitration

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

6. RECOMMENDATIONS

01 02 03 04
CONTRACTORS/ EXPERT COUNSEL ARBITRATOR
INVESTORS
• Involving experts at early Need to improve not only
• Involving counsels’ Should encourage
stage could benefit parties skills in arbitration
participation in the parties to use
when they decide what proceedings but also
early stage mediation in CMC
approach to take to the mediation skills to provide
• Apply proactive
resolution of the dispute advices at different stage of
conflict management
• Avoid the conflict of interest in proceedings
such as internal
the arbitration proceeding (be
company policies,
appointed to be an arbitrator) English Vietnamese interpreting is available throughout the program
training, etc. Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

71
 7. REFERENCE

1. ICC Task Force ”ADR and Arbitration” Commission Report (to be published by ICC Commission in
May)
2. ICC Mediation Guidance Notes, https://iccwbo.org/content/uploads/sites/3/2014/12/icc-
mediation-guidance-notes-english.pdf
3. Centre for Effective Dispute Resolution (CEDR), “Final Report of CEDR Commission on Settlement
in International Arbitration”, November 2009, p. 9 -10 accessed at https://www.cedr.com/wp-
content/uploads/2021/04/Arbitration-Commission-Document-April-2021.pdf
4. ICC Note to Parties and arbitral tribunals on the conduct of the arbitration under the ICC Rules of
arbitration, https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-
arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf
5. The IMI Arbitrator Techniques Report, https://imimediation.org/2021/05/04/arbitrator-
techniques-and-their-direct-or-potential-effect-on-settlement/ 9 program
English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A

English Vietnamese interpreting is available throughout the program

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72
 Mr. Nguyen Manh Dzung Mr. Nguyen Ngoc Minh
Senior Partner Head of Hanoi Office
DZUNGSRT’S ADR [email protected] Construction & Energy Arbitration
[email protected]

& ARBITRATION
PRACTICE GROUP

Ms. Dang Vu Minh Ha Dr. Nguyen Thi Thu Trang

Partner Special Arbitration Counsel
Maritime Arbitration & ADR Commercial
English Vietnamese & Investment
interpreting Arbitration
is available throughout the program
[email protected] Tất cả bài trình bày đều có dịch cabin sang tiếng Việt
[email protected]

HANOI OFFICE
6-11th fl, HAREC Bld.
4A Lang Ha, Ba Dinh Dist.
Hanoi, Vietnam
t +(84.24) 3772 6970

THANK YOU
SAIGON OFFICE
1605-16th fl, Saigon Riverside
2A-4A Ton Duc Thang, D1,
Hochiminh, Vietnam
t +(84.28) 3822 0076

www.dzungsrt.com

English Vietnamese interpreting is available throughout the program

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73
 ICC COMMISSION REPORT
CONSTRUCTION INDUSTRY ARBITRATIONS
RECOMMENDED TOOLS AND TECHNIQUES FOR
EFFECTIVE MANAGEMENT

Lynette Chew
Partner and Co-Head of Infrastructure Construction and Energy Disputes,
CMS Singapore

Lynette Chew is a Partner and a Co-Head of Infrastructure Construction and

Energy Disputes practice in the CMS Singapore. Lynette’s key specialisations are
infrastructure, construction and energy projects, where she offers both contentious and
non-contentious advice. Lynette’s contentious work involves litigation, arbitration,
adjudication and mediation. In almost 30 years of practice in disputes resolution, Lynette
has successfully represented clients in many high-profile matters and before the
Singapore High Court and the Court of Appeal, as well as in arbitrations administered
by the SIAC and ICC. She provides advice throughout the project cycle, as well as on
risk management in the areas of workplace safety, project insurance coverage, and
claims in builders’ and contractors’ risk policies.
Lynette is recognised as a leading individual by Chambers and Partners Asia
Pacific for Construction and by Who’s Who Legal for Hospitality. She has also recently
been appointed to the Panel of Arbitrator and Panel of Mediators for the Asian
International Arbitration Centre (AIAC) for 2022-2025, and is the only female Senior
Accredited Specialist for Building and Construction in Singapore.

74
ICC COMMISSION REPORT
Construction Industry Arbitrations
Recommended Tools and Techniques for
Effective Management Picture
Ảnh diễn giả
LYNETTE CHEW
Partner, Co-head Infrastructure Construction Energy Disputes, CMS Singapore
Senior Accredited Specialist (Building & Construction), Singapore Academy of Law

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES/NỘI DUNG

Part 1: Composition of Arbitral Tribunal

Part 2: Terms of Reference (TOR)
Part 3: Case Management Conference
Part 4: Procedural Orders

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

75
IMPORTANCE OF COMPOSITION OF TRIBUNAL
• Broad power to determine procedural rules of the arbitration, including the
manner in which evidence is to be presented and dealt with
• Arbiter on substantive issues and the merits of the action, with limited
scope of appeal, if any

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

COMPOSITION OF THE ARBITRAL TRIBUNAL

• Sole arbitrator vs 3-member tribunal
• Familiarity with the industry, cultural nuances and language capabilities
• Availability of the arbitrator
• Familiarity with relevant law and/or main legal traditions
• Strong case management skills
• “Balanced” tribunal
• Diversity
English Vietnamese interpreting is available throughout the 4 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

76
 TERMS OF REFERENCE
• Should include:
• Jurisdiction of the tribunal, arbitration agreement;
• Full names and description of the parties and arbitrators in addition to the place of
arbitration (Article 23(1)(a), (e) & (f) ICC Rules);
• Summary of the parties’ respective claims and defences and the relief sought (Article
23(1)(c) ICC Rules); and
• List of issues to be determined by the tribunal (if possible)

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

TERMS OF REFERENCE - SUMMARY OF CLAIMS/DEFENCES

• Article 23(1)(c) ICC Rules: TOR to include a summary of the parties’ respective claims/defences and of
the relief sought by each party
• Article 23(4) ICC Rules: No party may make new claims which fall outside the limits of the TOR unless
authorised to do so by the tribunal
• Tribunal must strike a balance in the summary by setting out the claims/defences accurately without
being too precise
• In large construction projects, a party may not be in a position to refer all its claims to arbitration at
once and the same time
• In such cases, it should be acceptable to allow the party to include in the TOR a list of the claims which
it would have the right to submit into the arbitration in future

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

77
 TERMS OF REFERENCE - LIST OF ISSUES
• Article 23(1)(d) ICC Rules: TOR to include list of issues to be determined,
unless the tribunal considers it inappropriate
• Conflicting considerations:
• In major engineering and construction cases, the parties’ positions may not be
sufficiently developed at the outset to prepare a useful list of issues
• Tribunal needs to ensure that detailed submissions are made early on to avoid the
situation in which the true issues only emerge at the hearing or immediately before it
• Tribunal to strike a balance between the above two considerations

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

TERMS OF REFERENCE

• Seat, language and governing law of substantive law

• Ascertain mandatory requirements of the lex fori
• Article 23(1)(g) ICC Rules: TOR to include particulars of applicable
arbitration procedural rules
• Party representation and experts

English Vietnamese interpreting is available throughout the 8 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

78
 CASE MANAGEMENT CONFERENCE
• The first CMC will result in the first procedural order and the procedural timetable
• Matters to consider at first CMC:
• Procedure for filing of respective parties’ cases accompanied by evidence
• Need for expert evidence, whether to defer expert evidence till factual evidence is adduced;
• Need, if any, for tests and a site visit;
• Need, if any, to split the case and the possibility of resolving certain issues by way of partial
awards or procedural decisions;
• Document management, including translation requirements and interpretation issues;

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

CASE MANAGEMENT CONFERENCE

• Practical procedural timelines and procedure/ limits on production of documents and
applications before tribunal; pre-hearing documents and electronic presentation of evidence
• Incorporate guidelines or standards for taking evidence, e.g. IBA Rules on the Taking of Evidence
in International Arbitration; CIArb Guidelines for Witness Conferencing in International
Arbitration
• oral hearing schedule (whether virtual or in person to be determined) and transcription
requirements, witness sequence, procedure & sequestration
• Restrictions on new documents and new witnesses
• Procedural Order with timetable to be drawn up separately from TOR

English Vietnamese interpreting is available throughout the 10 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

79
 ICC ARBITRATION AND COMMISSION REPORT
CONSTRUCTION INDUSTRY ARBITRATIONS
RECOMMENDED TOOLS AND TECHNIQUES FOR
EFFECTIVE MANAGEMENT (2)

Devathas Satianathan
Partner at Rajah & Tann Singapore LLP

Devathas graduated as valedictorian of the class of 2013 at Singapore

Management University and started his legal career as a Justices’ Law Clerk at the
Supreme Court of Singapore. He joined the arbitration and construction practice in
Rajah & Tann Singapore LLP in 2016 and has acted in, and advised on, HKIAC, ICC,
JCAA, LMAA, and SIAC arbitration proceedings, court-related arbitration matters,
SICC proceedings and general litigation with an energy, infrastructure and construction
focus. He is a CIArb fellow and was an assessor under the COVID-19 Temporary Relief
legislation.

80
ICC ARBITRATION AND COMMISSION
REPORT
Construction Industry Arbitrations
Recommended Tools and Techniques for
Effective Management (2)
Devathas Satianathan
Partner, International Arbitration, Construction & Projects, Rajah & Tann Singapore LLP
Fellow of the Chartered Institute of Arbitrators

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

ISSUES
Part 5: Procedural Rules and Procedures

Part 6: Splitting a case

Part 7: Documents and document control

Part 8: Fact Witnesses and Experts

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

81
 BUỔI CHIỀU - KHÁN PHÒNG 1
PHẦN A: NHÂN CHỨNG CHUYÊN GIA TRONG TRỌNG TÀI
XÂY DỰNG

AFTERNOON - BALLROOM 1
SECTION A : EXPERT WITNESS IN CONSTRUCTION
ARBITRATION

82
PHIÊN 1A: VAI TRÒ CỦA NHÂN CHỨNG CHUYÊN GIA
TRONG TRỌNG TÀI XÂY DỰNG

PANEL 1A: ROLE OF EXPERT WITNESS IN

CONSTRUCTION ARBITRATION

83
 Moderator Minh Le
Associate Director of J.S. Held LLC

Mr. Le Cong Minh is a senior construction delay and disruption consultant at JS

Held Singapore, a company specialised in providing expert witness services. He has
extensive experience in assisting clients with dispute resolution and planning matters
including construction scheduling, delay, and disruption analysis under various arbitral
bodies.
In Vietnam market, he was involved with the delay and disruption analysis for
the international arbitrations of several major construction projects, especially in the
energy sector. He also has experience working on projects located in other Southeast
Asia countries, Middle East, China, Australia, Nigeria, Norway, and Poland.
Minh holds a Bachelor’s Degree in Civil Engineering from Nanyang
Technological University, Singapore and Master’s Degree in Construction Project
Management from University of New South Wales, Australia. He is also a member of
SCL, CIArb, SIArb, AACE International, and Institute of Engineer.

84
 Roles of Expert Witness in Construction Arbitration
Vai trò của Nhân chứng Chuyên gia tại Tòa trọng tài XD

Moderator: Minh Lê Speaker: Suraj Sajnani Speaker: Risheq Hamzah Speaker: Simon Elliot

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

PANEL DISCUSSION / THẢO LUẬN

What is the advantage of an independent expert’s evidence over those by parties’ technical
employees?

So sánh giữa bằng chứng chuyên gia và ý kiến của nhân viên kỹ thuật?

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

85
 PANEL DISCUSSION / THẢO LUẬN

What are the potential risks and benefits of using joint or tribunal-appointed experts in
construction arbitration cases?

Lợi ích và rủi ro của việc bổ nhiệm chuyên gia chung hoặc chuyên gia bổ nhiệm bởi HĐTT?

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

PANEL DISCUSSION / THẢO LUẬN

How important is effective communication between the expert witness, the legal team, and
the tribunal? and what are some strategies for achieving this?

Tầm quan trọng của việc giao tiếp hiệu quả giữa chuyên gia, luật sư, và HĐTT?
Một số phương pháp để đạt được điều này?

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

86
 PANEL DISCUSSION / THẢO LUẬN

How can parties effectively cross-examine an expert witness in international construction

arbitration? and what are some common tactics used by legal teams in doing so?

Cách thức thẩm vấn chéo chuyên gia một cách hiệu quả tại phiên xử tòa TT?
Một vài phương pháp phổ biến được áp dụng bởi đội ngũ Luật sư?

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

PANEL DISCUSSION / THẢO LUẬN

Is it necessary to appoint an expert for any contentious technical issue?

Có cần thiết phải bổ nhiệm chuyên gia cho mọi vấn đề kỹ thuật đang tranh chấp?

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

87
 DOS AND DON’TS AS AN EXPERT WITNESS

Risheq Hamzah
Senior Director of Kroll

Hamzah is a Senior Director within Kroll’s construction expert services team and
is based in Singapore. He has assessed delay and been involved with the arbitral process
and worked on some of the largest offshore oil and gas and energy projects in the world.
Hamzah is ranked as a future leader construction expert by Who’s Who Legal,
the prominent global expert rating organisation. Hamzah is distinguished as “a smart
individual who approaches tasks in a sensible and intelligent way”.
Prior to starting his career in dispute resolution Hamzah acted as a senior engineer
and project manager for Petrofac delivering a wide range of offshore and onshore oil &
gas projects around the world, and has acquired experience in all stages of a project’s
life cycle, including Conceptual, FEED, Detailed Design, Construction, as well as
Integrity Monitoring. He specialises in delay and disruption in technically challenging
projects.

88
Dos and don’ts as an
Expert Witness
Hamzah Risheq

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Honour your Duty

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

89
Van Oord v Allseas [2015] EWHC TCC

“[the expert's] abrupt departure from the witness box at a short break for the transcribers,
never to return, was an indication of the stress he was under. But I regret to say that I
came to the conclusion that his evidence was entirely worthless. There were twelve
different reasons for that conclusion.

Firstly, I find that [the expert] repeatedly took OSR’s pleased case at face value and did
not check the underlying documents that supported or undermined them…

Seventhly, he repeatedly accepted that parts of his reports were confusing and
accepted on more than one occasion that they were positively misleading.”
English Vietnamese interpreting is available throughout the 3 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Write for the Reader

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

90
 1. Concise

2. Structure your report

3. Avoid using complicated words and jargon

4. Use of tables, charts and images where possible

5. Illustrate with examples.

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Focus on the Issues in Dispute

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

91
 Know your Report

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Hirtenstein v Hill Dickinson (2014) EWHC 2711

“At the end of [the Expert’s] evidence, I offered him the opportunity to provide an explanation to the
court before the end of the trial of how an appendix had come to be included as part of his report of
which he claimed to have no knowledge. [the Expert’s] did not take up that opportunity, and I can
therefore only infer that there is no explanation which exonerates [the Expert’s] of incompetence. On
his showing in this case I do not consider that he is a fit person to act as an expert witness.”

Skanska Construction UK Ltd v Egger (Barony) Ltd (2004] EWHC 1748

“[The Expert] produced a report of some hundreds of pages supported by 240 charts. It was a work of
great industry … There were times when the impression was created that [he] was not entirely familiar
with the details of the report, which he signed and presented … There were pressures of time upon
him. This and the extent of reliance upon the untested judgment of others in selecting and
characterising the data for input into the computer programme, however impeccable the logic of that
programme, adversely affects the authority of the opinion based upon such an exercise”
English Vietnamese interpreting is available throughout the 8 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

92
 LEVERAGING THE EXPERT’S ROLE IN CROSS-EXAMINATION

Simon Elliot
Partner at Three Crowns LLP

Simon provides advice and representation in commercial and treaty proceedings

conducted under the rules of the major arbitral institutions and ad hoc, and in pre-
arbitration dispute resolution processes. His practice has a particular focus on disputes
arising out of large infrastructure and major projects involving disputed technical, delay,
and quantum-related issues.
Simon is described by The Legal 500 as a “rising star” and clients laud his
“impressive ability to deep dive into highly complex, technical issues” and turn them
into “elegant and powerful arguments.”
Simon holds an LLB (First Class Hons) and a BA (French). He is admitted in
New Zealand, England and Wales, and France.

93
Leveraging the
Expert’s Role in
Cross-Examination
SIMON ELLIOT

English Vietnamese interpreting is available throughout the 1 program

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KEY ISSUES

Part 1/Role
Part 2/Independence
Part 3/Qualifications
Part 4/Instructions
Part 5/Assumptions

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

94
 ROLE
THE CHAIRMAN: So you think that there is a possibility that there was a, I suppose there is a possibility that
there was another, contract entered into around the same time with the same [c]ompany?
A. Again, that’s why I’m saying I need to check all the documents.
THE CHAIRMAN: Well, why haven’t you done that? Because you are here to give evidence to us.
A. But not on this. This came after. It was not part of my report.
THE CHAIRMAN: You haven’t seen this?
A. No, I saw later on. Very lately.
THE CHAIRMAN: But you saw it -- but did you read this before the hearing?
A. Yes, I discussed it and read it.
[…]
THE CHAIRMAN: Yes, thank you. So it is your responsibility to assist the Tribunal and if there are documents
relating to -- or other materials relating to the evidence that you are going to be examined on, you should be
prepared so that you can answer. From the Tribunal’s perspective it is quite unsatisfactory that you say you
need time now to go away and consider it again. 3
English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

INDEPENDENCE
Q. How long before your report was filed were you
approached by [Company X] to work on this case?
PROFESSOR [Y]: I think I became involved in the first discussions
regarding this matter perhaps 2008 or 2009 but it was a long time
ago.
Q. When you first were involved in these discussions, sir, about the
case, was that in the context of advice that you were giving to
[Company X]?
PROFESSOR [Y]: Yes.
English Vietnamese interpreting is available throughout the 4 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

95
 Qualifications
Q. Let me ask you some questions about your experience so we can get a handle on exactly what you are
bringing to bear on these problems.
[…]
Q. You have never been responsible for designing temporary drainage for a construction project before,
have you?
A. No, I have not.
Q. You have been involved in handover processes at the end of refinery mechanical works; yes?
A. I have, yes.
Q. You would be well placed to enter into the substance of some of the handover problems on this job?
A. I think so, yes.
Q. Let's look at what you actually did in your analysis and see how you applied your expertise.

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Qualifications
A. … It’s completely impractical and it’s not done in industry.
Q. You say that with a great deal of force --
A. I do.
Q. -- not having done this yourself?
A. Correct. I’ve been on construction sites.

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

96
 Qualifications
Q. How did you apply your deep expertise in refineries when you were doing your counting
and presenting the statistics in the tables?
A. It’s a statistical analysis. There’s no refinery experience requirement. It’s what was the
turnover notice date, what was the PLI, what was the characterisation of the PLI, when was
the PLI closed?
[…]
Q. Let me ask you: why are you ‐‐ and I'm going to say this to you, you are a man of
remarkable experience in refinery operations?
A. Thank you.
Q. I acknowledge that. But what you are presenting in this report doesn't involve any
substance, it's just counting and statistics, so why are you doing this?
A. I've lowered myself, I guess. I don't know.
English Vietnamese interpreting is available throughout the 7 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Instructions
Q. And then in your second report, as we saw yesterday, at page 4, you were asked -- this is again in Section
3.1 -- to write an expert witness report and a report in rebuttal to [Contractor’s] statement of defence,
witness statements, and expert reports. That's right?
A. Correct.
Q. I think it is fair to say that that is potentially a broad scope?
[…]
Q. So I take it that you made some choices about what you were going to address. Did you make those
choices yourself?
A. I did.
[…]
Q. And then in your third report, I looked in Section 3.1, but there wasn't really much information on what
you were asked to do there. Can we take it that it was just generally a broad mission of rebuttal?
A. Correct.
English Vietnamese interpreting is available throughout the 8 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

97
 Assumptions
Q. So, for the purpose of your calculation, you just took the average load density for the hospital as a whole?
A. I did.
Q. Which is 60 VA per metre squared?
A. Yes.
[…]
Q. Yes . Now, you agree that mechanical plant areas have a much lower load density than other areas of the
hospital?
A. I do.
Q. So if the omitted areas were mechanical plant areas, you would want to apply a much lower load density
value than 60 VA per metre squared, for example?
A. Yes , yes - - well , yes, okay, yes, much lower.
English Vietnamese interpreting is available throughout the 9 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

English Vietnamese interpreting is available throughout the 10 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

98
 EXPERT WITNESSES: WHO, WHAT, WHY, HOW?

Suraj Sajnani
Senior Associate, King & Wood Mallesons

Suraj is a Senior Associate in the Dispute Resolution team of King & Wood
Mallesons, specialising in international arbitration and litigation. He is based in our
Singapore office, working across both our Singapore and Hong Kong arbitration and
litigation practices. He is dual qualified in England & Wales and Hong Kong. He is
fluent in English, and speaks conversational-level Cantonese, Hindi and Sindhi.
Suraj has deep expertise in resolving construction disputes. He has acted on some
of the most iconic and impactful projects across South-East Asia, and in Hong Kong and
Macau. These include government infrastructure projects, airports, casinos, museums,
power-plants, railways, universities and entertainment attractions. He has experience in
acting for government and private-sector employers, main contractors, and sub-
contractors. He has counseled clients on dispute avoidance strategies, seen matters
through early successful settlements, and also through to asset enforcement. He enjoys
doing his own advocacy and has appeared in international arbitration and High Court
proceedings.
As a thought-leader in his practice areas, Suraj is the Editor of the firm’s
International Arbitration Blog. He is also a chapter author of Recognition and
Enforcement of Foreign Arbitral Awards, the Encyclopedia of Forms and Precedents on
Dispute Resolution, Arbitration in Hong Kong: A Practical Guide and the Annotated
Arbitration Ordinance. He has contributed to over 50 publications and panels.

99
Expert Witnesses:
Who, What, Why,
How?
Suraj Sajnani
King & Wood Mallesons, Singapore and Hong Kong

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES/NỘI DUNG

Part 1/Phần 1 – Why clients use experts?

Part 2/Phần 2 – Who should be an expert?
Part 3/Phần 3 – What experts are supposed to do?
Part 4/Phần 4 – How to please the tribunal?

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

100
 Why Clients use Experts?

Test: Balance of Probabilities

Evidence Argument

Oral Expert
Documentary Physical Facts Law
Factual opinion

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

What is the Purpose of Expert Witnesses?

MỤC ĐÍCH CỦA NHÂN CHỨNG CHUYÊN GIA LÀ GÌ?
• Provide assistance to the Tribunal • Hỗ trợ cho Hội đồng trọng tài
• Independence! • Tính độc lập!
• Based on expert’s opinion • Dựa trên ý kiến của chuyên gia
• Usually on a complicated technical matter • Thường về một vấn đề kỹ thuật phức tạp
• Common experts: • Thông thường cần các chuyên gia về:
• Quantum • Định lượng
• Delay / programming • Tiến độ thi công
• Specific technical areas, e.g. electrical, • Các lĩnh vực kỹ thuật cụ thể, ví dụ: điện,
waterproofing, tiling, steel, etc chống thấm, ốp lát, thép, v.v.

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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 KEY ISSUES/NỘI DUNG

Part 1/Phần 1 – Why clients use experts?

Part 2/Phần 2 – Who should be an expert?
Part 3/Phần 3 – What experts are supposed to do?
Part 4/Phần 4 – How to please the tribunal?

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Who Should be an Expert?

• Relevant expertise • Có kiến thức chuyên môn liên quan

• Sufficient time working “in the field” • Có kinh nghiệm làm việc thực tế
• Previous testimony / experience as an expert? • Có kinh nghiệm làm chứng đối chất tại tòa

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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 Types of Experts
Các loại chuyên gia
• Party-appointed experts • Chuyên gia do các bên chỉ đinh
• Single joint expert • Chuyên gia chung duy nhất
• Tribunal-appointed expert • Chuyên gia do Hội đồng trọng tài chỉ định

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES/NỘI DUNG

Part 1/Phần 1 – Why clients use experts?

Part 2/Phần 2 – Who should be an expert?
Part 3/Phần 3 – What experts are supposed to do?
Part 4/Phần 4 – How to please the tribunal?

English Vietnamese interpreting is available throughout the 8 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

103
 Duties to Tribunal
Các nghĩa vụ đối với tòa án
Voluntary and mandatory sources Các nguồn tự nguyện và bắt buộc
“The experts should be instructed by “Các bên cần cho nhân chứng
the parties that their overriding duty chuyên gia biết rằng nghĩa vụ trên
is owed to the tribunal and not to hết của họ là đối với Hội đồng
the instructing party.” trọng tài mà không phải đối với các
bên đưa ra yêu cầu.”

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Role of the Expert

Vai trò của chuyên gia
• Don’t be a hired gun • Không phải là một chuyên gia “đánh thuê”
• Don’t argue the client’s case • Không tranh luận về vụ việc của khách hàng
• Assist the Tribunal • Hỗ trợ Hội đồng trọng tài

English Vietnamese interpreting is available throughout the 10 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

104
 Role of the Expert
Vai trò của chuyên gia
Don’t simply rely on documents / analysis Đừng chỉ dựa vào các tài liệu/phân tích do khách
provided by the client… hàng cung cấp…

“The Tribunal can find no explanation of this “Hội đồng trọng tài không thể tìm thấy lời giải
item in Mr. [Expert’s] reports and thus it is not thích nào về mục này trong các báo cáo của Ông
supported by expert evidence. The claimed [Chuyên gia] và do đó không được hỗ trợ bởi
amounts are based on [Client’s] own valuation of bằng chứng chuyên gia. Số tiền được yêu cầu
the claims.” dựa trên định giá của chính [Khách hàng] đối với
các yêu cầu bồi thường.”

English Vietnamese interpreting is available throughout the 11 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Role of the Expert

Vai trò của chuyên gia
Do it yourself… Tự mình thực hiện...

“Ms. [Expert] did not select the base information “Bà [Chuyên gia] đã không tự lựa chọn thông tin
herself and did not undertake the original cơ sở và không tự mình thực hiện các phân tích,
research. Ms. [Assistant], who was not called as đánh giá. Bà [Trợ lý], người không được gọi là
an expert, undertook this work. Ms. [Expert] chuyên gia, đã thực hiện việc này. Bà [Chuyên
relied on [Assistant] to decide what documents gia] đã dựa vào [Trợ lý] để quyết định xem
and information should be used in the những tài liệu và thông tin nào sẽ được sử dụng
assessment.” trong quá trình đánh giá.”

English Vietnamese interpreting is available throughout the 12 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

105
 When do you Involve the Expert?
Chuyên gia tham gia khi nào?
Early engagement Tham gia từ sớm
• Can’t draft pleadings • Không thể soạn thảo biên bản bào chữa
• But can expert commence reporting so as to • Chuyên gia có thể lập báo cáo kỹ thuật để
indirectly “assist”? “hỗ trợ” khách hàng một cách gián tiếp
không?
• Private report about case to assist settlement /
client risk evaluation • Báo cáo tách biệt về vụ việc nhằm hỗ trợ
việc đàm phán giải quyết / đánh giá rủi ro
cho khách hàng

English Vietnamese interpreting is available throughout the 13 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES/NỘI DUNG

Part 1/Phần 1 – Why clients use experts?

Part 2/Phần 2 – Who should be an expert?
Part 3/Phần 3 – What experts are supposed to do?
Part 4/Phần 4 – How to please the tribunal?

English Vietnamese interpreting is available throughout the 14 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

106
 Tips for Report
Các lời khuyên dành cho báo cáo
• Set out expertise, qualifications, declaration of • Thể hiện trình độ, chuyên môn, và sự độc
independence lập, khách quan của mình
• Disclosure of working papers, drafts? • Có nên công khai các bản nháp của báo
cáo?
• Don’t be lawyers
• Đừng làm phần việc của Luật sư

English Vietnamese interpreting is available throughout the 15 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Tips for Report

Các lời khuyên dành cho báo cáo
• Always check it… • Luôn luôn kiểm tra…
“From the cross examination of Mr. [Expert], the “Từ cuộc kiểm tra chéo của ông [Chuyên
number of machinery moves counted was gia], số lần di chuyển của máy móc được
completely incorrect in any relevant sense at tính là hoàn toàn không chính xác, dù là là
least.” theo bất kỳ một ý nghĩa liên quan nào.”

English Vietnamese interpreting is available throughout the 16 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

107
PHIÊN A2: LÀM VIỆC HIỆU QUẢ VỚI NHÂN CHỨNG
CHUYÊN GIA TRONG TRỌNG TÀI XÂY DỰNG

PANEL A2: EFFECTIVE WORKING WITH EXPERT

WITNESS IN CONSTRUCTION ARBITRATION

108
 Moderator David Lockwood
Managing Director - South-East Asia at Hanscomb
Intercontinental

David Lockwood is a Chartered Quantity Surveyor and Fellow of Royal

Institution of Chartered Surveyors and has been a Member of the Chartered Institute of
Arbitrators for over 10 years and holder of Master of Laws Degree with Distinction in
Construction Law and Arbitration from Robert Gordon University in Aberdeen gained
in 2008.
David has 35 years’ experience in construction and infrastructure projects gained
in UK, Singapore, Hong Kong and Vietnam focusing since 2010 on the commercial and
contractual issues arising between the parties and providing specialist contract advice
on the use and interpretation of the contractual clauses under FIDIC suite of contracts.
David has worked for project owners, main contractors and specialist sub-
contractors protecting the commercial objectives of each under the contract terms.
David founded managed and led international consultant firms at Partner /
Managing Director level from 2004 to present and has employed and managed up to 90
staff.
David has over the last 10 years been appointed Expert Witness on a number of
International Arbitration cases and prepared Expert Reports for the quantum assessment
of Contractor’s claims for loss and expense resulting from delays. David has presented
and defended expert reports under cross-examination at hearings in Hong Kong and
Vietnam.

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 EFFECTIVE WORKING WITH EXPERT WITNESS IN
CONSTRUCTION ARBITRATION

Kelvin Aw
Partner and Co-Head of Infrastructure Construction and Energy Disputes,
CMS Singapore

Kelvin Aw is a Partner and Co-Head of Infrastructure Construction and Energy

Disputes practice in CMS Singapore. He is a Senior Accredited Specialist for Building
and Construction recognised by the Singapore Academy of Law. He is a fellow of the
Singapore and Chartered Institutes of Arbitrators, and an accredited Senior Adjudicator
with the Singapore Mediation Centre. In addition, he has served on the Council of the
Singapore Institute of Arbitrators and chaired its publications committee and has taught
construction law modules at the National University of Singapore.
Kelvin is consistently ranked as a leading individual for construction by the
Chambers Asia-Pacific: Leading Lawyers for Business and by The Legal 500. He has
been recognised by the 2020 to 2023 Best Lawyers, as well as Benchmark Litigation for
construction law in Singapore.

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Effective working with Expert Witness in
Construction Arbitration
Picture
Kelvin Aw Ảnh diễn giả
Partner, Co-head Infrastructure Construction Energy Disputes, CMS Singapore
Senior Accredited Specialist (Building & Construction), Singapore Academy of Law

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Key Issues/Nội Dung

1. Interaction between Shadow Expert and Expert Witness

2. Briefing of Expert Witness

3. Assisting Counsel / Tribunal in Proceedings

4. Witness Conferencing

5. Expert Witness Joint Statements

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

111
Interaction between Shadow Expert
and Expert Witness
• Shadow Expert:
• An expert advisor whose role is to assist the party in advancing its strongest case
• Does not give evidence in the proceedings
• Co-Existence of the Shadow Expert and the Expert Witness
• Shadow Expert can be involved much earlier on in the matter than the Expert Witness, without concerns over affecting his impartiality
(e.g. at the preparation of submissions for the claim/defence)
• Shadow Expert acts as a bridge of communication between party counsel and Expert Witness
• Allows presentation of technical information & answering of subsequent enquiries by the Expert Witness to be more efficient
• Allows for technical matters to be presented strongly in the claim/defence using appropriate expertise, while ensuring
that the Expert Witness retains its independence
• Shadow Expert going on to become the Expert Witness
• Engages concerns of whether an individual originally involved in the matter as a Shadow Expert (i.e. not required to maintain a position of
impartiality) & who has helped in framing the party’s strongest case, is thereafter able to fulfil its duty to be objective and independent as an
Expert Witness  Affects weight to be given his evidence as an Expert Witness eventually

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Briefing of Expert Witnesses

General Guidelines Letter of Instruction
Avoid: • List of discrete issues the expert witness is instructed to provide an opinion on
• Incomplete briefing documents to • Summary of facts/assumptions to be relied upon for the report
deliberately bias the report • Highlight that these same facts/assumptions should be explicitly stated in
• Document-dumping the report
• Questions scoped too widely • Include chronology of events
• Close-ended questions/questions • List of documents provided to the expert witness
which presume the answer • Consistent/simple referencing system
• Asking the expert witness to • Timeline
comment on issues of law • Set out the schedule of events/deadlines relevant to the expert
• Fees
• Highlight overriding duty of independence owed to the Tribunal

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

112
Assisting Counsel / Tribunal in Proceedings
• Counsel’s understanding of limitations of Expert Witness’s report: Ensures that the case put forward by Counsel during the
arbitration hearing is a position that the Expert Witness is able to agree with and support on the spot under questioning
• Avoids the situation where an Expert Witness feels pressurized on the stand to agree to a position which he does not
necessarily accept, and later be unable to support it  can affect credibility of Expert Witness evidence
• Expert Witness should not be taking part in fact-finding exercises/answering questions regarding the law
• Counsel should avoid this by:
• Emphasising the factual assumptions/findings the expert is expected to adopt in arriving at his opinion,
should the Expert Witness require reminders while on the stand
• Instructing Expert Witness to provide alternative opinion on various
possible factual findings on the currently available evidence

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Witness Conferencing
Overview
• “Hot-tubbing”
• Means of adducing evidence whereby two or more witnesses give
evidence concurrently before a Tribunal versus traditional method of
cross-examination
• Advantages:
• Side-by-side presentation of evidence makes it easier to compare
witnesses’ different views on an issue
• Improved quality of evidence
• Promotes efficiency
• Disadvantages :
• Existing unfriendliness or hostility between expert witnesses may
impede the presentation of evidence
• Presence of multiple witnesses generates more unpredictability
• Greater need for the Tribunal to intervene

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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Witness Conferencing
CIArb Guidelines for Witness Conferencing in International Arbitration
• Launched in Singapore on 23 April 2019
• Aim: Assist parties, arbitrators and experts in preparing and presenting evidence during
Witness Conferencing
• 3 main sections:
• Non-exhaustive Checklist of matters for parties to consider in determining whether to
even conduct a Witness Conference, considerations include:
• Set of Standard Directions providing a general framework for witness conferencing to
be eventually incorporated as part of an initial procedural order
• Three variations of Specific Directions to be issued once the parties once the parties
have determined to hold a Witness Conference
• Tribunal-led conference
• Witness-led conference
• Counsel-led conference
• Guidelines accompanied by explanatory notes that provide detailed discussion of the
items in the checklist and the standard and specific directions

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Expert Witness Joint Statements

• Expert witnesses’ meeting: Purpose – produce a joint statement which sets out concisely:
• What they can agree upon, thereby narrowing the issues in contention, and
• What they cannot agree upon and their reasons for disagreeing
• Lawyers should not be present at the meeting, or involved in the negotiation/drafting of joint statement, but
may assist with framing of the issues before the meeting
• Traditional approach: Expert witnesses file their individual reports before meeting to produce a joint
statement
• Current trend: Expert witnesses meet to discuss the issues/produce the joint statement before filing their
individual reports
• Advantages:
• Prevents expert witnesses committing themselves to a position before the meeting in their individual
reports,
which leads to polarisation and inertia to modify their positions thereafter
• Allows for early surfacing of discrepancies in information, documents and evidence
• One possible form of the joint statement is a Scott Schedule
• Residual issues:
• Whether discussions are without prejudice and cannot be referred to in proceedings
• Whether parties are bound by the issues agreed upon by the expert witnesses English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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 LOCAL PERSPECTIVE ON WORKING WITH EXPERTS

Nguyen Trung Nam (Tony)

Founder, Sr. Partner of EPLegal

Tony Nguyen (FCIArb) is dual-qualified advocate and solicitor in both Vietnam

and England & Wales. Tony has spent over twenty years practicing in the oil & gas and
energy industries with massive experience (both contentious and non-contentious
matters) in production sharing contracts, energy and infrastructure construction
contracts and related dispute settlement, including oil & gas onshore/offshore facilities,
hydropower plants, thermal power plants, petrochemical plants, refineries and solar
energy installation, ship building. Extensive ADR experience with disputes involving
parties from Asia, US and UK.
Recognised as a leading individual in international arbitration and dispute
resolution in Who’s Who Legal, Chambers and Legal 500. Noted as ‘a true expert in the
field of arbitration,’ ‘a forward-thinking and highly experienced practitioner’ who is
‘knowledgeable about arbitration rules, procedures and other practical matters’, and
‘amazingly dynamic’. Tony is a Benchmark Asia’s litigation star, being ranked
consistently in ABL Journal’s Vietnam Top 100 Lawyers.

115
Local perspective on Picture
working with experts Of Speaker

Mr. NGUYEN TRUNG NAM (TONY)

Founding & Sr. Partner of EP Legal

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

EP Legal – we do what we’re best at

• Construction & Project Management

• Arbitration, Litigation & ADR
• Energy
• Finance & Banking
• Shipping & Aviation
English Vietnamese interpreting is available throughout the 2 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

116
 PRACTICAL ISSUES IN WORKING
WITH EXPERTS
Part 1. The Interactions
Part 2. Future vs Actual Damages
Part 3. Other Practical Issues

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

THE INTERACTION
• Complexity and Overlapping of VN laws on Construction: common vs civil
Different legal systems  different ways of approaching
• Challenges for foreign experts  lawyers must assist at a deeper level
 Lawyers must understand issues at a certain depth
• Local lawyers: a bridge for interaction
Only international experts are capable + But problems are communication
and languages  leading to mis-communication and time-consuming.
English Vietnamese interpreting is available throughout the 4 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

117
 LIQUIDATED DAMAGE
Scope of recognition & quantum (Vietnamese law vs Common law)
• Recognized: How to calculate: $ USD/day but EPC contract already terminated  LD
was counted until the termination date or even after that.
LD requires actual damage? Or proof of quantum of damage?
• Penalty: Cap of Penalty vs Cap of LD
• Unrecognized: To replace LD = Loss of Profit
How to calculate Loss of Profit? But-for approach?
English Vietnamese interpreting is available throughout the 5 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

OTHER PRACTICAL ISSUES

Multi-disciplined experts work  co-operation is vital
 Counsel must understand methodology + to conduct cross-examination
 Experts to follow instructions while maintaining their independence.
Difficult to assess quantum based on authorities’ decisions
Electricity in coal power plants calculated pursuant to a Circular
State-invested projects: civil work’s expenses calculated based on
Circular of Ministry of Construction/Decision of People’s Committee
 Hard for experts and counsel to understand English Vietnamese interpreting is available throughout the 6 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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 EFFECTIVE WORKING WITH EXPERT WITNESS IN
CONSTRUCTION ARBITRATION

Matthew Wills
Senior Managing Director APAC, J.S. Held LLC

Matthew has over 28 years’ experience in the provision of commercial, quantum,

estimating, claims and disputes advice to local and international contractors, owners and
operators in the oil & gas engineering, procurement, and construction industries.
His experience on major construction and engineering projects is international
and extensive across Asia, the Middle East and Africa, Europe, the U.S., and Latin
America.
For the last 23 years, he has principally been involved in the offshore (FLNG,
FPSO, FSO, Platforms & Jackets and Marine & Shipbuilding) and onshore (LNG, LPG,
Refinery and Process Plants) oil & gas industry and marine industry providing, claims,
change order assessment, arbitration/dispute management, expert witness (quantum and
technical) appointment, ADR advice, contracts advice and administration.
Technical Expert Witness before the High Court of the Republic of Singapore in
relation to a dispute as to the expectation of “all reasonable endeavours” between two
joint venture partners on the procurement, fabrication and delivery of an offshore
Workover Pulling Unit. The dispute was finally decided by the Court of Appeal in which
the Court of Appeal substantially preferred the evidence of Matthew over that of the
other expert. See the judgement of KS Energy Services Limited v BR Energy (M) SDN
BHD [2014] SGCA 16.

119
 EFFECTIVE WORKING WITH EXPERT WITNESS
IN CONSTRUCTION ARBITRATION

MATTHEW WILLS
Senior Managing Director APAC

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES/NỘI DUNG

Part 1/Phần 1. Typical Expert Witnesses in Construction Arbitrations

Part 2/Phần 2. Duties and Roles of the Expert Witness
Part 3/Phần 3. Practical Aspects of Working with Experts

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

120
Typical Expert Witness in Construction Arbitrations
Quantum Expert – an expert in cost engineering / quantity surveying to understand and analyse the costing
information relevant to the project (e.g., bid estimates, contract award amounts, Bills of Quantity, valuation of
variations, site running costs, etc.) and opine on the appropriate monetary compensation for each head claim.

Delay / Disruption Expert – an expert in project planning / project controls to understand and analyse the scheduling of
the project and opine on the parties’ responsibilities for the delay events based on the critical path for the contractor’s
performance of the project.

Engineering / Technical Expert – Depending on the nature of the dispute, specialists in architecture, façade, fire
protection, mechanical/electrical engineering, structural engineering, safety, etc. may be required to provide
engineering or technical opinion.

Accounting Expert– an expert in economic damages / forensic accounting to understand and analyse the contractor’s
accounting records and evaluate likely losses (e.g., loss of profit, loss of past and future earnings, valuations, cash-flow
analysis) arising from liability. English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Duties and Roles of the Expert Witness

RICS Practice Statement and Guidance, ‘Surveyors acting as
expert witnesses’, 4th edition, February 2023 provides useful guidance
for the quantum expert:
Overriding duty as an expert witness is to the Tribunal. (PS 2.1)

Duty for expert to apply reasonable skill and care in arriving at expert opinion. (PS 4.1(b))

No conditional or success-based arrangements (PS 10.1)

Ensure not conflicted to any parties to the arbitration or if any prior relationship, to be disclosed (PS 2.6
and GN 3.3)

Impartiality and transparency (‘Principal message’, page 6):

• independent and unbiased opinion ;

• falls within the expert’s expertise, experience and knowledge;
• state main facts and any assumptions relevant to the expert’s conclusions; and
• uninfluenced by instructing party.
English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

121
Practical Aspects of Working with Experts
From a Quantum / Delay perspective:

• Instructions to the Expert:

• Details of Parties involved, details of project, nature of claims, and for experts to confirm ability to accept appointment.
• Clear instructions on issues or heads of claims required for the expert to provide expert opinion.
• Reasonable deadlines, the earlier the appointment the better.
• Expert may need to be transparent with instructions. In some instances, experts are required to attached instructions with
the expert’s report.
• To state clearly when nature of the expert’s opinion is required to be based on opinions of other experts or other
documentary evidence.

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Practical Aspects of Working with Experts

From a Quantum / Delay perspective:

• Early Engagement / Appointment

• Will enable a party to get an early opinion from the perspective of the expert as to both the strength and
weaknesses of its claim when considered in a construction arbitration forum.
• Provides objective specialist advice on what other documents, analyses or resources are required to strengthen
its claim or counter claim.
• Instructing party may have misunderstood certain principles and evaluation methodologies leading to over or
under valued claim submissions.
• Provides sufficient time for experts to conduct detailed analysis to provide robust opinions especially for
complex construction projects.
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122
Practical Aspects of Working with Experts
From a Quantum / Delay perspective:

• Early Expert Conclave(s)

• Jointly agreed list of issues for experts of the same discipline to opine upon.
• Methodology of analysis - Quantum example, “figures-as figures” evaluation. The assumption that both
parties do have entitlement to make the claims and counter claims and what these claims amount to. But
matters of entitlement are for the Tribunal to decide.
• Methodology of analysis - Delay example, Windows Analysis – Which AACE Intl. RP to use? / SCL Protocol?
• Agreement on the available documentary evidence and procedures required to review them. Delay example,
where different baseline schedules are available, experts to agree on the baseline to use.
• Establish a platform and methodology to share relevant evidence. Quantum example, invoices and proof of
payments not often attached during pleadings due to volume of documents. Typically, some form of cloud-
based storage.
English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Practical Aspects of Working with Experts

From a Quantum / Delay perspective:

• Joint Meeting(s) & Joint Report(s) between experts

• Generally, after exchange of expert reports.
• Encourages experts to attempt agreement where possible prior to the hearing.
• Saves time for parties and assists Tribunal to only deal with disagreed matters during hearing.
• Provides transparency on any assumptions, basis, principles, evaluation methodologies applied by opposing
experts and where they disagree.
• Speeds up the process of understanding a contractor’s claim based on the evidence. Delay example, the
contractor may have more scheduling data than the Employer and experts may be able to exchange this
schedule data; Quantum example, understanding a contractor’s cost accounting system/ledger.
• Experts need not dwell on any agreed claims in further reports – saves time.
English Vietnamese interpreting is available throughout the program
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123
Practical Aspects of Working with Experts
From a Quantum / Delay perspective:
Complex construction arbitrations often involve very large amounts of documentary evidence;

• Auditing of Actual Costs

• In circumstances where the time may be limited, or cost considerations do not permit the physical review of
thousands of documents, and if parties agree, an audit of cost can be performed.
• Quantum example, both experts undertake a physical audit of the claimants accounting and payment
documents at the claimant's office based on pre-agreed criteria and or “blind” sampling.
• Schedule Validation Exercise
• Delay example, the contractor’s progress reports may contain errors or are incomplete – if parties agree, a joint
validation exercise can be performed based on actual progress against other documentary evidence such as
letters, photographs, progress claims so as actual project progress can be agreed or disagreed between the
experts. English Vietnamese interpreting is available throughout the program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

English Vietnamese interpreting is available throughout the 10 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

124
 EFFECTIVE WORKING WITH EXPERT WITNESSES IN
CONSTRUCTION ARBITRATION

Tom Taylor
Managing Director of Expert Services at Socotec

Tom is a Chartered Quantity Surveyor with almost 20 years’ experience in the

construction industry, working for contractors, employers, and consultancies, tackling
complex and high-value claims on some of the world’s highest profile building, energy,
civil engineering, infrastructure, and oil and gas projects. He has advised on construction
projects in Asia, Australia, Africa, North America, and throughout Europe. Tom has been
instructed over 130 times as an independent quantum expert. He has been appointed by
public and private clients, contractors, and subcontractors in litigation, international
arbitration, and other alternative dispute resolution fora, both internationally and in
courts in the UK, including the Technology and Construction Court (TCC). Tom has
testified as a quantum expert on more than 10 occasions. He sits as a DAB member on
energy generation projects and holds Masters’ degrees in both Quantity Surveying and
Construction Law.

125
 EFFECTIVE WORKING WITH EXPERT WITNESSES
IN CONSTRUCTION ARBITRATION

TOM TAYLOR
Managing Director of Expert Services
SOCOTEC Advisory

English Vietnamese interpreting is available throughout the 1 program

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Question, leading to the development of a working hypothesis…

Within the International Construction Arbitration landscape, are the various rules, regulations
and protocols relating to party-appointed Experts appropriate to effectively facilitate the
assistance and value provided to the Tribunal and to the parties, by party-appointed Experts?

English Vietnamese interpreting is available throughout the program

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126
 KEY ISSUES

Part 1. Evolution of the Expert’s role in legal proceedings (UK)

Part 2. Laws, rules and specific provisions governing Expert evidence
Part 3. Protocol for Expert evidence in International Construction
Arbitration?

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Evolution of the Expert’s role (1)

No clear definition of an Expert Witness in law.

How do we know what an Expert Witnesses role and purpose in legal proceedings is?

Folkes v Chadd (1782) – Lord Mansfield “His opinion, deduced from all these facts is that, mathematically speaking, the
bank may contribute to the mischief, but not sensibly. Mr Smeaton understands the construction of harbours, the causes
of their destruction and how remedied… …The cause of the decay of the harbour is also a matter of science, and still
more so, whether the removal of the bank can be beneficial. Of this, such men as Mr Smeaton alone can judge…”

Davie v Magistrates of Edinburgh (1953) – Lord President Cooper “Their duty is to furnish the judge… …with the
necessary scientific criteria for testing the accuracy of their conclusions so as to enable the Judge or jury to form their
own independent judgment by the application of these criteria to the facts proved in evidence… …The scientific opinion
evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration
along with the whole other evidence in the case”
English Vietnamese interpreting is available throughout the program
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127
Evolution of the Expert’s role (2)
Duties and responsibilities of Expert Witnesses in civil cases comprehensively addressed in Ikarian Reefer case (1993).
Eight experts involved in the case, many judged not to have fully understood their role and responsibilities. Cresswell J
gave judgement, principles of which were largely reflected in Civil Procedure Rules (CPR) 1998 and the accompanying
Practice Directions (PD) for Experts:

1. Independent product, uninfluenced as to form or content by the exigencies of litigation (CPR 35.3; PD 35.2.1).
2. Assistance to the court by way of objective, unbiased opinion on matters within their expertise (CPR 35.3; PD 35.2.2).
3. Experts should state facts/assumptions relied on, should not omit facts which could detract from opinion (PD 35.2.3).
4. Should be made clear when a question or issue is outside their expertise (PD 35.2.4 (a)).
5. Where insufficient data is available, opinions should be appropriately qualified (PD 35.2.4 (b)).
6. If there is a change in opinion for any reason, such a change should be communicated without delay (PD 35.2.5).
7. Where reference material is referred to (photographs, calculations, measurements, etc.), it must be provided with
the report.

English Vietnamese interpreting is available throughout the program

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Laws, rules and specific provisions governing Expert evidence (1)

The general duties and responsibilities of Expert Witnesses in civil cases are, largely, settled:

• Independent, objective and unbiased.

• Opinions on matters within their expertise.
• Should not venture into matters of fact or law.
• Primary duty to assist the Court/Tribunal.

This is generally well known and easily said to be understood.

BUT, are the specific rules and regulations that govern the roles and duties of an Expert Witness in complex
Construction Arbitration proceedings (typically fact-heavy, resulting in many thousands of documents, and often taking
years to be fully resolved) appropriate to facilitate efficient and effective Expert Witness evidence?

English Vietnamese interpreting is available throughout the program

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128
Laws, rules and specific provisions governing Expert evidence (2)
(English) Arbitration Act (1996)

37 Power to appoint experts, legal advisers or assessors.

(1) Unless otherwise agreed by the parties—
(a) the tribunal may—
(i) appoint experts or legal advisers to report to it and the parties, or
(ii) appoint assessors to assist it on technical matters, and may allow any such expert, legal adviser or assessor to attend the
proceedings; and
(b) the parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by any such person.
(2) The fees and expenses of an expert, legal adviser or assessor appointed by the tribunal for which the arbitrators are liable are expenses of the
arbitrators for the purposes of this Part.

No specific provision for party-appointed Expert Witnesses.

English Vietnamese interpreting is available throughout the program

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Laws, rules and specific provisions governing Expert evidence (3)

London Court of International Arbitration (LCIA), Arbitration Rules (2020)

Article 21 Expert to Arbitral Tribunal

21.1 The Arbitral Tribunal, after consultation with the parties, may appoint one or more experts to report in writing to the Arbitral Tribunal and
the parties on specific issues in the arbitration, as identified by the Arbitral Tribunal.

21.2 …

Again though, party-appointed Experts are dealt with somewhat lightly under the general heading of “witnesses”:
Article 20 Witnesses

20.1 The provisions of this Article 20 shall apply to any fact or expert witness on whose evidence a party relies.

English Vietnamese interpreting is available throughout the program

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129
Laws, rules and specific provisions governing Expert evidence (4)
ICC Arbitration Rules (2021)

Article 25 Establishing the Facts of the Case.

2. The arbitral tribunal may decide to hear witnesses, experts appointed by the parties or any other person, in the presence of the parties, or in
their absence provided they have been duly summoned.
3. The arbitral tribunal, after consulting the parties, may appoint one or more experts, define their terms of reference and receive their reports.
At the request of a party, the parties shall be given the opportunity to question at a hearing any such expert.

No other material mention of party-appointed Expert Witnesses.

English Vietnamese interpreting is available throughout the program

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Laws, rules and specific provisions governing Expert evidence (5)

CIArb Practice Guideline; Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (2007)
• Governs the preparation of Expert evidence (subject to agreement that it shall be used) (Article 2).
• Procedure for adducing Expert evidence – reports, joint reports, and testimony (Articles 6&7).

IBA Rules on the Taking of Evidence in International Arbitration (2020 ed., orig. 1999)
• Often adopted in construction contract arbitration clauses, or at commencement of arbitration – again, voluntary.
• Detailed guidance specific to party-appointed Experts (Article 5). Prescribes form, content and conduct of Experts.

Civil Justice Council; Guidance for the instruction of experts in civil claims (2014)
• Detailed guidance on complying with Part 35 of the CPR.
• Prescribes that Experts have an overriding objective to assist the courts in dealing with cases proportionately and expeditiously

RICS, Surveyors Acting as Expert Witnesses, 4th edition (2023) – typically Quantum Experts
• Practice statement of mandatory requirements and guidance for RICS members (chartered surveyors) when acting as Experts.
• Deals with duties, conditions, reports, oral evidence, amendments and resolving differences.

English Vietnamese interpreting is available throughout the program

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130
Case study; Expert evidence in practice (1)
• Major defects in a series of high-rise buildings and marine installations, requiring all residents/occupants to be
decanted and major programme of remedial works undertaken.
• 6 experts appointed by each party: Architectural, Marine & Structural Engineering, M&E, Fire, and Quantum.
• Memorial approach to arbitration procedure – statement of case and all evidence served simultaneously.
• Quantum expert evidence prepared largely without knowledge of technical evidence due to timetable.
• Following memorials, many alternative scenarios arise from the different facts asserted by the parties, and the
technical evidence adduced as to the cause of and potential solutions to remedy the defects.
• Period for development of finalised quantum expert evidence and quantum joint statement is increasingly
compressed by sequential technical joint statements, large number of alternative scenarios emerge.
• Final quantum joint statement is a lengthy and complicated Scott Schedule, with little time for interrogation of other
expert’s position and narrowing of issues.
• Satisfactory for the Parties? For the Tribunal?

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Case study; Expert evidence in practice (2)

• Critical and non-critical Employer delays on a major energy generation project. Contractor claims from Employer.
• Accounting, Delay and Quantum Experts appointed by both sides.
• Joint statements on accounting (veracity of Contractor’s cost ledger) and delay (periods when critical and non-critical
delays were felt based on alternative versions of the facts) ordered and delivered prior to quantum reports.
• Quantum reports streamlined by:
• Early involvement of Claimant’s Quantum Expert; SoC is based on a sustainable case.
• Evidence not being prepared on issues which have fallen away as a result of the conclusions of the accounting
and delay joint statement processes.
• Early quantum joint statement process agreeing methodology and measure of loss.
• Second quantum joint statement presented to the Tribunal containing:
• Limited scope of disagreement and a dynamic joint schedule which calculates the correct outcome based on a
series of decision matrices; subject to Tribunal’s decision on the facts.
• Post-hearing, Tribunal seeks joint confirmation from quantum experts on discreet areas of award.

English Vietnamese interpreting is available throughout the program

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A Protocol for Expert evidence in International Construction Arbitration?

• 70% of practitioners want to see Tribunals streamline expert evidence on issues of liability and quantum; and also
expect that Tribunals should schedule expert evidence earlier in the procedural timetable to allow party-appointed
experts more time to narrow and agree issues. (BCLP Arbitration Survey 2021: Expert Evidence in International Arbitration)
• Over 60% of practitioners consider that party-appointed experts should report directly to the Tribunal on progress
made in reaching agreement. (BCLP Arbitration Survey 2021: Expert Evidence in International Arbitration)
• Experts in the discreet fields of Quantum, Delay, Technical (Engineering, Architecture), and Accounting are
frequently appointed in international construction arbitration proceedings; and many of these Experts work only in
the construction dispute resolution field.
• Protocol dealing with complex matters often addressed by Quantum and Delay Experts has achieved widespread
traction in a short period of time. (SCL D&D Protocol, 2017)

• An excellent and extensive wider commentary on the role and value of expert evidence is provided by Professor Doug Jones AO

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Thank you

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132
 BUỔI CHIỀU - KHÁN PHÒNG 2
PHẦN B: CÔNG NGHỆ SỐ TRONG
TRỌNG TÀI XÂY DỰNG QUỐC TẾ

AFTERNOON - BALLROOM 2
SECTION B: DIGITAL TECHNOLOGY IN
INTERNATIONAL CONSTRUCTION ARBITRATION

133
 PHIÊN B1: CÔNG NGHỆ HỖ TRỢ CÁC BÊN VÀ
TRỌNG TÀI VIÊN TRONG TRỌNG TÀI XÂY DỰNG

PANEL B1: TECHNOLOGY SUPPORTING PARTIES AND

ARBITRATORS IN CONSTRUCTION ARBITRATION

134
 Moderator Dr. Nguyen Thi Hoa
University Lecturer at International Law Faculty,
HCMUL

Dr Nguyen Thi Hoa has been a lecturer at Ho Chi Minh city University of law in
Vietnam since September 2019, where she teaches and researches international business
law, international commercial arbitration law, international commercial contract
negotiation and drafting skill. In addition, since April 2022, she is also a reviewer for
the Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
(indexed on Scopus – 1st quartile in 2020–2022) of the American Society of Civil
Engineering. She is also currently a member of the Executive Committee of the Society
of Construction Law in Vietnam (SCLVN). Before becoming a lecturer, she worked as
a legal adviser in the Department of Justice of Ho Chi Minh City in Vietnam (2010–
August 20219) and her job involved advising on public–private partnership contracts,
construction law, investment law, international dispute resolution, promotion of
commercial arbitration, recognition and enforcement of decisions of foreign authorities,
etc. In December 2018, she finished her PhD thesis with honours at Panthéon-Assas
Paris II University in France on the topic of ‘Dispute resolution procedures in the
international construction sector under FIDIC forms of contracts’. From September to
December 2018, she worked as an intern in a construction law firm in Paris. From March
2023, she has been also invited to act as expert witness for the dispute brought to
international arbitration tribunal.

135
 TECHNOLOGY IN CONSTRUCTION ARBITRATION –
THE ARBITRATOR’S PERSPECTIVE

Nhu – Hoang Tran Thang

Counsel at Peter & Kim

Nhu-Hoang Tran Thang is a French trained lawyer registered with the Paris bar
and a Swiss national with Vietnamese roots. She practices international arbitration,
covering both investment and commercial arbitration. She has acted as arbitrator,
counsel or assistant to the arbitral tribunal in over thirty arbitrations conducted under
various frequently applied rules and related to a variety of industries. She has developed
solid expertise in energy-related disputes and has practiced extensively under Swiss,
French and other civil laws. Nhu-Hoang is also well versed in the development of
Investor-State disputes in Southeast Asia. Before joining Peter & Kim, Nhu-Hoang
practiced international arbitration at LALIVE and at the office of renowned arbitrator
Pierre Tercier. Prior to that, she gained experience in the arbitration teams of magic circle
firms in Paris and at arbitration boutiques in Geneva and London.
Nhu-Hoang is a former co-chair of the young branch of the International Council
for Commercial Arbitration (ICCA) and regularly speaks and publishes in the field of
international arbitration. She is a member of the Executive Committee of the Rising
Arbitrators’ Initiative (RAI), and a co-founder of the Energy Related Arbitration
Practitioners (ENERAP)’s Geneva Chapter.
In 2023, she was selected as one of the 20 Who’s Who Legal Arbitration Thought
Leaders Global Elite Under 45 (non-partner category).

136
Technology in Construction
Arbitration - the Arbitrator’s
Perspective
NHU-HOANG TRAN THANG – Peter & Kim

English Vietnamese interpreting is available throughout the 1 program

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KEY ISSUES
Part 1. Electronic communications & digital evidence
Part 2. File keeping and drafting of the award
Part 3. Virtual hearings and meetings
Part 4. Security

English Vietnamese interpreting is available throughout the 2 program

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Electronic Communications & Digital Evidence (1/2)
• Law of the seat, applicable arbitration rules
• Specific rules applicable to the arbitration (Procedural Order No. 1)
• Guidance from institutions
o ICC Commission Report on Leveraging Technology for Fair, Effective and Efficient
International Arbitration Proceedings (2022)
o UNCITRAL Notes on Organizing Arbitral Proceedings (2016)

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Electronic Communications & Digital Evidence (2/2)

• Methods of electronic exchange

• Online case management platforms
• Hard copies?
• Procedural decisions
• Costs
• Proof of service and signature requirements
English Vietnamese interpreting is available throughout the 4 program
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138
 File keeping and Drafting of the Award

Exhibit Manager Sharepoint

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Virtual hearings and meetings (1/4)

• Law of the seat

o ICCA Right to a Physical Hearing Project
• Applicable arbitration rules
o VIAC Arbitration Rule 25(1) o Swiss Arbitration Rule 27(2)
o ICC Arbitration Rule 26(1) o UNCITRAL Arbitration Rule 17(1)

• Specific rules applicable to the arbitration (Procedural Order No. 1)

English Vietnamese interpreting is available throughout the 6 program
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139
 Virtual hearings and meetings (2/4)
• Guidance from institutions
o IBA Rules on the Taking of Evidence on International Arbitration, Rule 8(2) (2021)
o ICC Commission Report on Leveraging Technology for Fair, Effective and Efficient
International Arbitration Proceedings (2022)
o ICC Checklist for a Protocol on Virtual Hearings and Suggested Clauses for Cyber-
Protocols and Procedural Orders Dealing with the Organisation of Virtual Hearings
(2021)
o UNCITRAL Notes on Organizing Arbitral Proceedings (2016)
o Seoul Protocol on Video Conferencing in International Arbitration (2020)
o SIAC Guide: TakingYour Arbitration Remote (2020) 7 program
English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Virtual hearings and meetings (3/4)

• Hearing protocol • Minimum equipment

• Advance preparation and testing
• Electronic bundles, online live transcript
and operators

English Vietnamese interpreting is available throughout the 8 program

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140
 Virtual hearings and meetings (4/4)

• Ensuing the integrity of the evidentiary hearing

• Ensuring equal treatment of the Parties
o Access to technology
o Time zones

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Security
• Law of the seat
• Regional regulations
• Duties of arbitrators
• Guidance from institutions
o ICC Commission Report on Leveraging Technology for Fair, Effective and Efficient
International Arbitration Proceedings (2022), referring to
o ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration (2022)

English Vietnamese interpreting is available throughout the 10 program

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141
 CONSTRUCTION ARBITRATION: DRONES

Daniel Waldek
Partner at Herbert Smith Freehills

Dan specialises in construction, energy, and infrastructure disputes. He has acted

as counsel in arbitrations relating to conventional and renewable power projects,
onshore and offshore oil and gas projects, refinery, petrochemical and other process
plants as well as road, rail, water and airport projects.
Dan advises on complex claims under a large range of construction contracts
covering design and build, turnkey, EPCIC and EPCM arrangements, as well as
production sharing contracts, offtake and feedstock supply agreements, and concession
agreements. Dan’s work is multi-jurisdictional, with a strong focus on projects in
Indonesia, Vietnam, Singapore, Malaysia, Thailand and South Asia.
Dan regularly appears as counsel and advocate in ICC and other arbitrations. Dan
also advises on arbitration related court proceedings including restrains on bond calls,
jurisdictional challenges, set aside applications and enforcement proceedings. Dan also
sits as an arbitrator.

142
Construction
Arbitration: Drones
Dan Waldek
Partner, Herbert Smith Freehills LLP

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES/NỘI DUNG

Use of drones in Construction Arbitrations

Legal Considerations

English Vietnamese interpreting is available throughout the 2 program

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143
Construction Arbitrations: Common claims

Delays – EOTs
Ground
/ Liquidated Variations
Conditions
Damages

Defects Termination

// 3

Construction Arbitration: Proving your case

For any claim, the burden is on the party asserting the claim to prove its position
using the best evidence.

Traditional Letters
forms of
evidence: Emails
Minutes of Meeting
Progress Reports
Schedules
Photographs
Witness Statements
Expert Reports
// 4

144
Construction Arbitration: Proving your case
Drones be used to capture data in a cost-effective and safe manner to prove
your case:

Capture different types of data, e.g. visual, infra-red,

thermal, LIDAR, gas / moisture

Data can be collected periodically

Easy to use in areas which may be difficult or

dangerous for human inspections
// 5

Construction Arbitration: Proving your case

How can drone data be used to improve your case?
Delay Claims
• Capture visual data on progress over time

Defects
• Capture HD imagery of pipework in hard to access areas

Variations
• Identify out of scope work

Force Majeure
• Demonstrate existence of extreme weather events, and impact on project work

Pricing
• Demonstrate extent of civil earthwork volumes, terrain and elevation

Project Management
• Monitor access to site, mobilisation / de-mobilisation
• Site conditions

Site Visits
• Targeted and remote access

// 6

145
Drone Construction Site Progress Report

• Schedule
and
milestone
data

• Defects

• Easy to
present as
evidence

// 7

Drone Construction Timelapse

• Cause of
delay

• Critical path
analysis

• Sequence of
events

// 8

146
Legal Considerations

• Regional or national drone flight regulations

• Restricted airspace

• Privacy: workers and visitors consent

• Risk from drone accidents

• Insurance requirements

• IP - data storage, processing, third party operators

// 9

Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

English Vietnamese interpreting is available throughout the 10 program

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147
 EMPLOYMENT OF TECHNOLOGIES IN
CONSTRUCTION ARBITRATION FROM
THE PARTIES’ PERSPECTIVE

Minh Nguyen
Special Counsel and Head of Dispute Resolution Practice of ACSV Legal

Minh Nguyen is a Special Counsel and Head of Dispute Resolution Practice of

ACSV Legal. She joined ACSV Legal in 2019 after having worked nearly ten years for
various international law firms and corporations, including a Magic Circle firm. Prior to
joining ACSV Legal, Minh worked as Legal Compliance Manager in the SEA&NZ
Business Unit of the largest brewing company in the world.
Minh obtained an LLM in 2017 in International Arbitration from Pepperdine
University with one of the highest-grade point averages in her graduation class. Minh
also attended the intensive International Commercial Arbitration course in Harvard Law
School in January 2023. As the Head of the Dispute Resolution Practice of ACSV Legal,
Minh has directly advised and represented clients in some multi-million-dollar cases
arbitrated at the SIAC, the ICC, and the VIAC.
Minh has been a registered arbitrator at the Pacific International Arbitration
Centre in Vietnam since 2018 and an Adjunct Lecturer in the Master of Civil Law
Program – a joint program between the University of Economics and Law of Vietnam
and the University of Paris 1 Pantheon-Sorbonne – since 2019.

148
Employment of
technologies in
construction arbitration Picture

from the parties’ Ảnh diễn giả

perspective
MINH NGUYEN – ACSV LEGAL

English Vietnamese interpreting is available throughout the 1 program

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KEY ISSUES
Part 1. Research Tool and Database to Choose the Right
Arbitrator
Part 2. Search Engine for Arbitration
Part 3. ChatGPT – Food for thoughts

English Vietnamese interpreting is available throughout the 2 program

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149
Part 1. Research Tool and Database to Choose a Right Arbitrator

HOW TO FILTER THE POTENTIAL

ARBITRATOR CANDIDATES WHO ARE RIGHT
FOR YOUR CASE?

In most cases, arbitrator selection follows a

basic 3-step process:

Start with a Long List of Potential

Arbitrators

Pare it down to a Short List of Suitable

Arbitrators

Pick The Arbitrator to appoint

English Vietnamese interpreting is available throughout the program

Source: https://arbitratorintelligence.com/the-three-steps-in-appointing-arbitrators-and-which-one-is-most-important/
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt
3

Part 1. Research Tool and Database to Choose a Right Arbitrator

ARBITRATOR SEARCH ON ARBITRATOR INTELLIGENCE
(https://arbitratorintelligence.com/)

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

150
Part 1. Research Tool and Database to Choose a Right Arbitrator
For example, arbitrators identify in the Survey of
Arbitrator Intelligence their perspectives on the
efficacy of:
• Tribunal efforts to encourage settlement
• Use of Redfern Schedules
• Page limits on parties’ submissions
• “Documents only” arbitration
• Online hearings even over party objection
• Broad and/or electronic document production

These statistics in the Survey Report must be

purchased by counsels and third-party funders.

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Part 1. Research Tool and Database to Choose a Right Arbitrator

Examples of the questions raised in the Arbitrator
Intelligence Questionnaire (AIQ)

Database for Arbitrator Intelligence needs the input

from the involved parties including parties’ counsels.
The Arbitrator Intelligence Questionnaire (AIQ) is a
feedback questionnaire that will be used by Arbitrator
Intelligence to collect information on case management
and decision-making practices of the international
arbitrator.
AIQ, for instance, aggregates biographical information
about various arbitrators as well as statistics related to
past decisions such as claimants’ rates of recovery, with
the aim of providing reports.

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

151
Part 1. Research Tool and Database to Choose a Right Arbitrator
GAR’s Database DELOS’s Database
https://globalarbitrationreview.com/tools/arbitrat https://member-delosdr.org/
or-research-tool (Database is open to all with no cost)

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Part 2. Search Engine for Arbitration

https://jusmundi.com/en
This International Arbitration Search
Engine instantly searches for international
arbitration information in dozens of
leading online international arbitration
legal resources. This tool is particularly
useful for finding information on
international arbitration such as
arbitration awards, arbitration doctrine,
arbitrator profiles (for a conflict check),
arbitration rules, and arbitration
jurisprudence.

English Vietnamese interpreting is available throughout the 8 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

152
Part 3. ChatGPT – Food for Thoughts .
CHAT GPT and Arbitration?

Maybe in a long-run ChatGPT can optimally analyse

past rulings and opinions made by arbitrators and
identify patterns in their reasoning or decision-
making.

The Financial Times says that it “promises to thrust

AI into everyday life, and shake up the tech world.”

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

English Vietnamese interpreting is available throughout the 10 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

153
PHIÊN B2: TÍCH HỢP QUÉT LASER, BIM, VÀ CÁC CÔNG
CỤ ICT KHÁC TRONG XỬ LÝ TRANH CHẤP XÂY DỰNG

PANEL B2: INTEGRATING BIM, LASER SCANNING AND

OTHER ICT TOOLS IN CONSTRUCTION DISPUTE
RESOLUTION: ISSUES AND AVENUES

154
 Assoc. Prof. Viet Dzung Tran
Moderator Dean of the Faculty of International Law,
Ho Chi Minh City University of Law

Assoc. Prof. Tran Viet Dung holds PhD of Law from National University of
Singapore (NUS); also read international trade policy at Harvard Kennedy School. His
specialisation includes international trade and investment law, competition, international
dispute settlement.
He also teaches LLM Programmes of the University of West England, Jean
Moulin University Law School, Montesquieu University of Bordeaux, Chulalongkorn
University; member of Editorial Board of the Kutafin University Law Review (from
2014) and Vietnames Journal of Legal Sciences (from 2018).
Tran combines academic knowledge with practical experience as an international
lawyer. He has practiced law at WongPartnership LLP and KhattarWong LLP in
Singapore, and was the country manager for KhattarWong Vietnam (2010-2014); a
founding member of DL&Partners. He has undertaken many consultancies for MNCs
with respect to their foreign investment in Vietnam, as well as supported Vietnamese
enterprises to conduct business abroad. He is the author of many articles, books and
monographs in the field of international trade and international investment. He is
recognized by prestigious international lawyer ranking organizations such as Legal500,
Chambers, AsiaLaw.

155
 REALITY CAPTURE FOR LAWYERS OR
HOW I LEARNED TO STOP WORRYING AND LOVE LASER SCANNING

Paul Menzies
General Director of GeoInstinct Vietnam Co. Ltd.

Paul Menzies is the General Director of GeoInstinct Vietnam Co. Ltd., a leading
Integrated Measurement & Geospatial Consultancy in Vietnam. Coming from a
background in Civil Engineering, Paul has worked on Civil Engineering and
Infrastructure projects in the UK and China.
GeoInstinct has grown under his leadership to cover the complete range of
Surveying & Geospatial services from Topographic Surveys, 3D Laser Scanning,
Mobile Mapping, Underground Utilities Surveys and more. GeoInstinct in recent years
has expanded to offer a full range of consultancy and advisory for Digital Twins, and
has a strong strategic partnership with Aurecon Group.
Projects in Vietnam have included ABB, Ford Motor Company, RMIT
University, Viettel, and many others with GeoInstinct now having clients in more than
10 countries. This has provided excellent experience in: contract negotiation, financial
management and reporting, administration of contracts, project management and the
implementation of strict compliance for both project standard and anti-bribery.
Paul was a co-founder The Society for Construction Law to Vietnam and
continues to promote positive professional development and standards in construction
law, construction and surveying.

156
 Reality Capture for Lawyers
Or How I Learned to Stop Worrying
and Love Laser Scanning
Paul Timothy Menzies
General Director
GeoInstinct Vietnam Co. Ltd.

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES
Part 1. Reality Capture Technology
Part 2. Types of Data
Part 3. Case Study:
Wind Turbine Inspection
Construction Verification
Road Measurements

English Vietnamese interpreting is available throughout the 2 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

157
 KEY ISSUES
Part 1. Reality Capture Technology
Part 2. Types of Data
Part 3. Case Study:
Wind Turbine Inspection
Construction Verification
Road Measurements

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Reality Capture Technology

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

158
Point Cloud Imagery Other Sensors

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Reality Capture Technology

Handover
Site
Feasibility Tender Design Construction Inspection and
Investigation
Maintenance

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

159
 Reality Capture Technology
Failed Project Poor Quality
• What happens when the project fails? • How to quantify the issues?

• Who will pay for works already • How to identify the responsible party?
completed?
• When did the event occur?
• How will the completed works be
measured? • Is this a ’one-off’ event or regular
occurance?
• Is the surveying process open to fraud?

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES
Part 1. Reality Capture Technology
Part 2. Types of Data
Part 3. Case Study:
Wind Turbine Inspection
Construction Verification
Road Measurements

English Vietnamese interpreting is available throughout the 8 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

160
Types of Data

Volumes & Stockpiles Site Settlement

Inspections

As-Built Verification Structural Assessments

English Vietnamese interpreting is available throughout the 9 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES
Part 1. Reality Capture Technology
Part 2. Types of Data
Part 3. Case Study:
Wind Turbine Inspection
Construction Verification
Road Measurements

English Vietnamese interpreting is available throughout the 10 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

161
 Case Study | Inspection

• Case study – Applies both during construction and at the as-built stage.
• Especially useful if already implementing BIM, but applies also to a CAD workflow
• Increasingly common for international clients
• QS – materials, installed features, etc.
• Laser Scanning + UAV + GPR

Due to confidentially, examples augmented by published case studies from 3rd parties.

Laser Scanning
-BLK2GO
-RTC360
-P50
-Verity

English Vietnamese interpreting is available throughout the 11 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES
Part 1. Reality Capture Technology
Part 2. Types of Data
Part 3. Case Study:
Wind Turbine Inspection
Construction Verification
Road Measurements

English Vietnamese interpreting is available throughout the 12 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

162
 Case Study | Construction Verification

Case study – Applies both during construction and at the as-built stage.
Especially useful if already implementing BIM, but applies also to a CAD workflow
Increasingly common for international clients
QS – materials, installed features, etc.
Laser Scanning + UAV + GPR

Due to confidentially, examples augmented by published case studies from 3rd parties.

1 – Control Network
2 – Laser Scanning
3 – Underground

English Vietnamese interpreting is available throughout the 13 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES
Part 1. Reality Capture Technology
Part 2. Types of Data
Part 3. Case Study:
Wind Turbine Inspection
Construction Verification
Road Measurements

English Vietnamese interpreting is available throughout the 14 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

163
 Case Study | Road in Vietnam
• GeoInstinct commissioned to perform Mobile Mapping
services.

• The investor commissioned the work as they had concerns

about the quality of the project.

• Outputs required included:

• Geo-referenced Point Cloud
• Geo-referenced Photos
• Topographical Drawings
• DTM / DEM / DSM
• Identification of Potholes
• Level and Settlement Checks

• Additionally:
• Results Certified by Level 1 Surveyor English Vietnamese interpreting is available throughout the 15 program
• Raw Data Retained Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Case
Important Study | Road in Vietnam
Notes
• Accuracy no poorer than 2 cm deviation to actual (Difficult!)
• Resolution of minimum of 1 point every 10 cm2 on road surface
• Geo-referenced to VN-2000 TM-3 (1XX-XX)
• Geo-referenced during capture and linked to a project control
network

Method Statement
• GeoInstinct used the GeoInstinct Apollo MMS
• Developed in-house in 2021 (Make in Vietnam!)
• Parts sourced from Industry-Leaders in Germany, Canada
• Software developed in partnership with developers in
Europe
• Reliability and Accuracy testing of more than 1000 km in
late 2021
• Geo-referenced with a High-End GNSS Base Station set over
site control point 16 program
English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

164
English Vietnamese interpreting is available throughout the 17 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

English Vietnamese interpreting is available throughout the 18 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

165
 Cao độ tại vị
trí trắc
ngang/dọc

Vị trí trắc
ngang/dọc
(chainage) mỗi
2m

English Vietnamese interpreting is available throughout the 19 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Cross-section route 1038m

Cross-section route 1818m

English Vietnamese interpreting is available throughout the 20 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

166
Longitudinal section at the center of the road, marking the
elevation every 2m

English Vietnamese interpreting is available throughout the 21 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

English Vietnamese interpreting is available throughout the 22 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

167
 English Vietnamese interpreting is available throughout the 23 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Export abnormal position on Visualize elevation of abonormal

CAD position

English Vietnamese interpreting is available throughout the 24 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

168
 English Vietnamese interpreting is available throughout the 25 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Automatically generate 1x1m . elevation and scatter

plots

English Vietnamese interpreting is available throughout the 26 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

169
 English Vietnamese interpreting is available throughout the 27 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Thank you!

English Vietnamese interpreting is available throughout the 28 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

170
 BUILDING INFORMATION MODELLING (BIM) AND
DISPUTE RESOLUTION

Maximilian Benz
Associate Director at HKA

Maximilian Benz is a chartered quantity surveyor with the Royal Institution of

Chartered Surveyors a quantum expert witness in international arbitration and mediation
proceedings, holding over a decade of experience in industry.
Maximilian’s expertise is drawn from working with professional quantity
surveying consultancies, contractors and owners. The last seven years focus has been on
expert witness and expert advisory matters.
Maximilian has developed knowledge through working on numerous iconic
projects globally in the leisure, power and utilities, commercial, retail, rail, oil & gas
and aerospace sectors. These projects range from office fit out’s to multibillion-dollar
funded airports.
Maximilian has provided expert witness and advisory services, conducting
quantum analysis of project data and accounts to provide advisory and witness reports
on matters in dispute, more recently his includes an understanding of the application of
BIM in disputes.
Maximilian’s areas of expertise is quantum. His experience includes; estimation
of damages and estimation of construction, assessment of change, assessment of
prolongation, assessment of disruption and assessment of employer claims.

171
 Building Information
Modelling (BIM) and
Dispute Resolution

17 April 2023
Singapore Maximilian Benz 1 program
English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Maximilian Benz BSc LLM MRICS MCIArb APAEWE AMAE

Education
• BSc Quantity Surveying
• LLM Construction Law & Arbitration
• MRICS (Chartered Quantity Surveyor, Royal Institution of Chartered Surveyors)
• MCIArb (Member of the Chartered Institute of Arbitrators)
• APAEWE (Advanced Professional Award in Expert Witness Evidence)
• AMAE (Associate Member, Academy of Experts)

Industry Memberships
• Member of the Society of Construction Law, Singapore

Associate Director & Quantum Expert English Vietnamese interpreting is available throughout the 2 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

172
 Who we are
HKA is the world’s leading consultancy of choice for
multi-disciplinary expert and specialist services in risk
mitigation and dispute resolution within the capital
projects and infrastructure sector.
Clients have access to
thought leaders with We also have extensive experience advising clients on
diverse skills and the the economic impact of commercial and investment
ability to anticipate, treaty disputes and in forensic accounting matters,
investigate and resolve across all industry sectors.
complex challenges. In addition, HKA supports companies that conduct
business with the US Federal Government, providing
them with consulting services on complex government
contracting matters.

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Our services
•Expert
•Claims and dispute resolution
•Advisory
•Multi-disciplinary (QED+)
•Engineering, Architectural & Technical
•Forensic Accounting & Commercial Damages
•Government Contracts
•Cybersecurity & Privacy Risk Management

English Vietnamese interpreting is available throughout the 4 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt
4

173
 English Vietnamese interpreting is available throughout the5 5 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Objectives
Discuss:

• Terminology Update

• How BIM can help prevent disputes

• How BIM can be helpful in dispute resolution

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

174
Shifting Industry Focus away from BIM
Common Misconceptions

• BIM is relevant to all built assets, not just ‘buildings’

B uilding • BIM is relevant to all stages of a built assets lifecycle, not just the
construction ‘building’ phase

I nformation Management

M odelling •

•
BIM is not just about ‘3D Modelling’

Term arguably excludes members of industry outside Modelling

English Vietnamese interpreting is available throughout the 7 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Shifting Focus from BIM to IM: Example

Explanation: https://www.bimplus.co.uk/nima-
uk-bim-alliance-puts-information-management-
first-with-new-name-new-approach/

Example of U.K. BIM Alliance new name

English Vietnamese interpreting is available throughout the 8 program
(NIMA is “Greek” for Thread)
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

175
 How can BIM help to
prevent Disputes?

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

BIM & Dispute Avoidance

Produce & Manage Design Information

Visualisation/
Information Optioneering

Improves Collaboration
& Communication Clash Detection
CL ASH

Improves Asset
Handover (O&Ms) 4D (Time)

Design for Offsite £ 5D (Quantities/Cost)

Manufacture (DfMA)
English Vietnamese interpreting is available throughout the 10 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

176
 Common Data Environments (CDEs) & Dispute Avoidance

• Help Manage large volumes of data

• Easier to find latest revisions of a document …
• Store superseded versions (which may come in useful later).
• Adhering to an Information Management plan should also
enable parties to be able to sort information efficiently.
11 program
English Vietnamese interpreting is available throughout the
BIM & CDEs: “BIM, at its most basic level, could be described as a process by which 3D models and a common data environment are used to access and Tất cả bài trình bày đều có dịch cabin sang tiếng Việt
share information across the supply chain in order to increase the efficiency of delivering and operating projects.” Croft, Winfield, Contracts playing catch up in
digital revolution, Construction Law (2019) 30 7 Cons.Law 21, [August 2019]

CDEs & Dispute Avoidance

Problems Solution

30% 13%
Initial Project Time spent Common Data
Data Lost searching for data Environments

https://www.emerson.com/documents/autom https://constructionblog.autodesk.com/constr https://ukbimframework.org/wp-

ation/operational-readiness-bringing-gap- uction-common-data-environment/ content/uploads/2020/09/Guidance-Part-
between-construction-operations-for-new- C_Facilitating-the-common-data-
capital-assets-en-68086.pdf environment-workflow-and-technical-
solutions_Edition-1.pdf

Common data environment (CDE): “agreed source of information for any given project or asset, for collecting, managing and disseminating each information container through a
managed process.” ISO 19650-1

Popular CDE solutions: Aconex, Projectwise, Asite. 12 program

English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

177
 How can BIM help in
Dispute Resolution?

English Vietnamese interpreting is available throughout the 13 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

What is an Expert Witness?

CPR 35 Duties of an Expert Witness

English Vietnamese interpreting is available throughout the 14 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

178
How is evidence changing in dispute resolution?

Building Information Common Data

BIM provisions in
Models Environments
Contracts

• Models are increasingly • Lawyers are increasingly • CDEs (Data Repositories) are also
being issued in Evidence. referring to BIM to featuring in claims
• Models can provide insight make/defend against claims • CDEs contain records which are
into design, delay, and (e.g. referencing BIM useful in claims (e.g. uploads,
quantum issues. Execution Plans (BEPs), downloads, comments, approvals).
English Vietnamese interpreting is available throughout the 15 program
model coordination efforts, or Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Protocols).

How can models help?

Architectural Structural MEP
Design Design Design

Design

Design & Design &

Delay Quantum
Only Design, Only
Delay and
Main
Quantum
Dispute Contractor
Delay &
Quantum
Delay Only
Quantum Subcontractor Clash identified 04 June 2019

Contract
Administrator

Was the Design coordinated?

Client
Did the uncoordinated design impact progress on
site? Federated Models Clash Resolved 04 September 2019

What cost impacts would reasonably arise as a

result of variations? Models can provide Useful, Clear, Factual, Contemporaneous 16 program
English Vietnamese interpreting is available throughout the
Digital Evidence Tất cả bài trình bày đều có dịch cabin sang tiếng Việt
Did the design flaw result in delay and cost impact
to the claimant?

179
 HKA BIM Services

Data Analysis Design Change Analysis Level of Effort Analysis Clash Detection

Data Validation 4D (BIM +Time) 5D (BIM + Cost)

English Vietnamese interpreting is available throughout the 17 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Example of Design Claim Design Change Analysis

January 2022 Model

March 2022 Model Differences between January and March 2022 Model
Revisions 18 program
English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

180
Pre Change Model Example of using Models
in Quantum Claims

Output of 5D analysis

*Only possible when reliable data is included in model

Post Change Model 19 program
English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Data Visualisation Example

Left: Data
visualization
comparing design
data uploads to
Aconex by 4
designers

Task: Describe how Data

was shared by Parties in
the project?

Benefits
• CDE evidence typically
easy to analyse
• Easier to communicate
factual evidence
20 program
clearlyis available throughout the
English Vietnamese interpreting
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

*Only possible IF you have access…

181
CDEs may only be helpful if you have access
Trant Engineering Limited v Mott MacDonald Limited [2017] EWHC 2061 (TCC)

Judge: Mrs Justice O’Farrell DBE

Date: July 2017
Described as “The first reported UK BIM case”

Facts: MMD (consultant) blocked access to Projectwise during a

CDE
dispute with Trant (client) regarding non-payment.
Trant successfully sought an injunction for access.

Consider copying all data to your businesses servers, or ensure

contract stipulates access to CDEs in the event of a dispute
English Vietnamese interpreting is available throughout the 21 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Conclusion
• Non-digitised or Disorganised evidence is harder
to analyse.
• Models & CDEs can be incredibly useful
(providing we have access, and the data is
relevant to the dispute).
• BIM isn’t causing any disputes, but models and
CDEs may provide relevant Factual
Contemporaneous Evidence.
• This is essential data for writing claims &
writing expert witness reports. English Vietnamese interpreting is available throughout the 22 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

182
 Scan the QR code
below to view our
brochure

English Vietnamese interpreting is available throughout the 23 program

https://www.hka.com/brochure/digital-bim-for-disputes/ Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Thank for listening
AGILE. COLLABORATIVE. CONFIDENT. INNOVATIVE. PASSIONATE

English Vietnamese interpreting is available throughout the 24 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

183
 ADMISSIBILITY AND ASSESSMENT OF ELECTRONIC EVIDENCE IN
CONSTRUCTION ARBITRATION PROCEEDINGS –
AN ANALYSIS FROM VIETNAMESE LAW PERSPECTIVE

Nguyen Thi Lan Huong

Deputy Head of the Department of International Trade Law,
Faculty of International Law,
Ho Chi Minh City University of Law

Mrs. Huong received a Master’s degree in law from Nagoya University, Japan in
2012 within the framework of Human resources Development scholarship funded by
the Japanese government. She is currently a PhD Candidate at University of Lausanne,
Switzerland. She is also a researcher at Centre of Comparative, European and
International Law, University of Lausanne, Switzerland.
Mrs. Huong teaches and researches in the area of international trade and
investment law, international dispute settlement, trade-investment and sustainable
development. Mrs. Huong has published many articles and books in the field of
international trade and investment law. Her most recent books include: Investor-State
dispute settlement: legal issues and practice in the context of intergartion, Ho Chi Minh
City National University Publishing 2018 (Co-editor and Co-author) and Investor-State
Arbitration: Rules-Procedures-Practices, Ho Chi Minh City National University
Publishing, 2021 (Co-editor and Co-author).

184
Admissibility and Assessment of
Electronic evidence in Construction
Arbitration Proceedings - An analysis Picture
from Vietnamese law perspective Ảnh diễn giả

NGUYEN THI LAN HUONG

Deputy Head of Department of International Trade Law
International Law Faculty, HCMC University of Law
English Vietnamese interpreting is available throughout the 1 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KEY ISSUES

Part 1. Electronic evidence in construction disputes

Part 2.The admissibility and assessment of unlawfully obtained
electronic evidence under Vietnamese law
Part 3. Suggestions

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Part 1. Electronic evidence in construction disputes
1.1 Introduction of Electronic evidence
- Digital evidence/electronic evidence: “Digital Evidence is any information
of probative value that is either stored or transmitted in a digital form.”
[The Scientific Working Group on Digital Evidence, "Digital Evidence: Standards and Principles",
Forensic Science Communications, April 2000 - Volume 2 - Number 2]

- A Document is “anything in which information is recorded or maintained in

any form, including but not limited to paper or electronic form”
[Rule 111(1),(2) Model European Rules of Civil Procedure 2020]
English Vietnamese interpreting is available throughout the 3 program
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Part 1. Electronic evidence in construction disputes

1.2. Electronic evidence in construction disputes

- Recorded progress data
- Photographic, video-recorded
- Building Information Modelling (BIM )
- .....

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 Part 1. Electronic evidence in construction disputes

The cyber risks

of networked
common data
environment
and levels of BIM
[Anil Sawhney et
al, Construction
4.0: An Innovation
Flatform for the
Build
environment” ,
Routledge 2020]
English Vietnamese interpreting is available throughout the 5 program
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Part 2. The admissibility and assessment of unlawfully

obtained electronic evidence under Vietnamese law
o Questions to be solved:
- What evidence is admissible in an international arbitration proceeding?
- What constitutes unlawfully obtained evidence? Does public disclosure of a confidential document
make it admissible as evidence?
- Does the interest in truth-finding prevail over confidentiality and privilege?
- Does accepting unlawfully obtained electronic evidence undermine the fairness of arbitration
proceedings? Would accepting such evidence encourage future illegal behavior?
- What if the party providing the evidence was involved in the underlying unauthorized public
disclosure?
- If unlawfully obtained electronic evidence is the only tool to uncover the truth, should it be
accepted?
- Whether admitting such evidence led to setting aside the arbitral award on procedural public policy
English Vietnamese interpreting is available throughout the 6 program

grounds? Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

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Part 2. The admissibility and assessment of unlawfully
obtained electronic evidence under Vietnamese law
2.1 Grounds for Admitting unlawfully Obtained Electronic Evidence
(i) To ensure the objective of arbitration proceedings in accordance with the
jurisdiction of the arbitral tribunal
(ii) To protect fundamental rights (right to a fair trial) [ Art. 15.1, 70.5
Vietnamese Civil Procedure Code 2015, Art. 4.2 and 4.3 Vietnamese Law on
Commercial Arbitration 2010]
(iii) The admissibility is not contrary to relating evidence rules under
Vietnamese law [Art. 6, Art. 48.3, Art. 108, Art .286 Vietnamese Civil Procedure
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Code 2015]

Part 2. The admissibility and assessment of unlawfully

obtained electronic evidence under Vietnamese law

2.2 Grounds for excluding unlawfully Obtained Electronic Evidence

(i) Electronic evidence is protected by law (public policy): (Art. 2 of the Law on
Protection of State Secrets 2018)
(ii) Privilege documents/information [Art. 4.3, Art. 68.2(đ) Vietnamese Law on
Commercial Arbitration 2010]
(iii) Violation of principle of good faith or clean hands
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Part 3. Suggestions
3.1 Arbitration tribunals
- Improving knowledge of technology and case law
- Art 9,2 IBA rules 2020 on the Taking of Evidence in International
Arbitration

3.2 Construction sector

- Cybersecurity
- Good faith
- IBA rules 2020
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Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

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BUỔI CHIỀU - PHÒNG TÂN THUẬN - HIỆP PHƯỚC
PHẦN C: CÁC QUY TẮC TRỌNG TÀI TRONG KHU VỰC VÀ
VIỆC ÁP DỤNG VÀO CÁC VỤ TRỌNG TÀI XÂY DỰNG
PHỨC TẠP

AFTERNOON - ROOM TAN THUAN - HIEP PHUOC

SECTION C : ARBITRATION RULES OF
REGIONAL INSTITUTIONS AND THEIR APPLICATION IN
COMPLEX CONSTRUCTION ARBITRATION

190
 PHIÊN C1: CÁC QUY TẮC TRỌNG TÀI KHU VỰC
ÁP DỤNG TRONG CÁC TRANH CHẤP XÂY DỰNG
NHIỀU BÊN NHIỀU HỢP ĐỒNG

PANEL C1: ARBITRATION RULES OF REGIONAL

INSTITUTIONS IN COMPLEX MULTI-PARTY MULTI-
CONTRACT CONSTRUCTION ARBITRATION

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 Amanda Lees
Moderator International Arbitration Partner at King & Wood
Mallesons

Amanda leads the South-East Asia Disputes team of King & Wood Mallesons.
Having been based in Singapore for 11 years and with more than 22 years’ experience
in dispute resolution in the region, Amanda is an expert in international commercial and
investment treaty arbitration in the Asia Pacific region. She also acts as international
counsel in complex cross border litigation including instructing on proceedings in the
Singapore International Commercial Court appealed to the Court of Appeal.
Amanda acts as counsel in large complex disputes across a range of industries,
with a particular focus on construction, infrastructure, energy and resources and
technology disputes.
Amanda represented the Republic of Indonesia as advocate in its successful
defence of a US$580 million claim under the India-Indonesia BIT, which was arbitrated
under the UNCITRAL Rules and administered by the PCA.
Amanda sits as an arbitrator regularly (including on a number of Vietnamese
disputes) and has had 22 appointments as arbitrator by SIAC, ICC and LCIA, including
as emergency arbitrator, expedited arbitrator and presiding arbitrator. Amanda is listed
on the panels of SIAC, HKIAC, ICDR (AAA) and JCAA.
Amanda is a Fellow and Director of the Chartered Institute of Arbitrators in
Singapore and Fellow of the Singapore Institute of Arbitrators. As part of the CIARB
Faculty, Amanda has taught international arbitration to hundreds of lawyers and other
professionals throughout Asia.
She is a regular speaker at international conferences, has published widely on
international arbitration and is ranked as a leading individual for international arbitration
by Legal 500 and ‘most in-demand arbitrator’ in Chambers Global.

192
 COMPLEX MULTI-PARTY
MULTI-CONTRACT CONSTRUCTION ARBITRATION AND
ARBITRATION RULES

Heather Yee Jing Wah

Assistant Director of the Asian International Arbitration Centre
(AIAC, Malaysia)

Ms. Heather Yee is a Fellow of the Chartered Institute of Arbitrators (CIArb) and
accredited mediator. She is currently serving as the Assistant Director of the Asian
International Arbitration Centre (AIAC). She regularly advises on alternative dispute
resolution matters including mediation, adjudication, expert determination, ad hoc
arbitration and institutional arbitration. She edited the book publication ‘Standard Form
of Building Contracts Compared’ published by LexisNexis in 2022 and frequently
invited to judge in international moot competitions and to speak in international events,
forums and conferences on topics relating to dispute resolution and dispute settlement.

193
COMPLEX MULTI-PARTY
MULTI-CONTRACT
CONSTRUCTION ARBITRATION
AND ARBITRATION RULES
HEATHER YEE JING WAH
Assistant Director, AIAC

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KEY ISSUES

Part 1 – Multi-Party & Multi-Contract Arbitration

Part 2 – The AIAC Arbitration Rules 2021

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 Part 1
Multi-Party & Multi-Contract
Arbitration

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Multi-Party & Multi-Contract Arbitration

• As a brief overview, the fundamental characteristics of arbitration

comprise of the following:
• confidentiality of proceedings
• tribunal neutrality and impartiality
• party autonomy
• flexibility in the choice of the applicable procedural and the substantive laws
• universal enforceability

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 Multi-Party & Multi-Contract Arbitration

• Construction contracts would involve multiple contracts intersecting at different

tiers of projects entered with multiple parties. The need for an efficient and
universally enforceable dispute resolution mechanism targeted for multi-party
disputes, such as multi-party arbitration, is particularly relevant.

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Multi-Party & Multi-Contract Arbitration

MAIN SUB SUB-

EMPLOYER CONTRACT
CONTRACTOR
CONTRACT CONTRACTOR

• While the terms multi-party arbitration and multi-contract arbitration are often
mentioned interchangeably with regards to complex arbitrations, these terms are
conceptually different.

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 Multi-Party & Multi-Contract Arbitration

• Multi-Party Arbitration: all the contracting parties may be bound by a single

contract containing a standard arbitration clause, thus it can be safely
assumed that all the parties have consented to multi-party arbitration
• It is understood to mean as arbitration which deals with dispute involving
more than two parties.

English Vietnamese interpreting is available throughout the 7 program

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Multi-Party & Multi-Contract Arbitration

• Multi-Contract Arbitration: involves disputes under multiple contracts

executed between the same parties if the arbitral proceedings dealing with
the disputes under different contracts but are consolidated into a single
arbitration
• Construction projects would involve multiple contracts intersecting at
different tiers of projects entered with multiple parties.

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 Part 2
AIAC Arbitration Rules 2021
(2021 Rules)

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2021 Rules

• The 2021 Rules provide for two main provisions on multi-party and multi-contract
arbitration: Rule 21 (Joinder of Parties) and Rule 22 (Consolidation of
Proceedings).

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 2021 Rules – Rule 21 (Joinder of
Parties)

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Rule 21 (Joinder of Parties)

• Any Party to an arbitration or an additional party (“Additional Party”) may, no later

than the filing of the statement of defence and counterclaim, or at any time
thereafter provided there exists exceptional circumstances, request one or more
Additional Parties to be joined as a Party to the arbitration (“Joinder Request”)
(Rule 21.1)
• Rationale for Deadline: Joinder Requests should not be used as a dilatory tactic to
delay the proceedings.

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 Rule 21 (Joinder of Parties)
• Requirements for Joinder Request:
a) all Parties to the arbitration and the Additional Party consent in writing to
the joinder;
b) such Additional Party is prima facie bound by the arbitration agreement
that gives rise to the arbitral proceedings; or
c) the participation of such Additional Party is necessary for the efficient
resolution of the dispute and directly affects the outcome of the arbitral
proceedings. (Rule 21.1)

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Rule 21 (Joinder of Parties)

• Under Rule 21.1(b), “prima facie bound” means that the Additional Party has to
have a sufficient legal nexus to the underlying contract .
• When raised at the early stages of the proceedings, the Joinder of Parties assist
the tribunal to contextualize and delineate the relevant procedural and merits
issues, and streamline the procedural agenda and timeline.

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 Rule 21 (Joinder of Parties)
• Rule 21.4 enumerates the requirements for Joinder Request, including, but not
limited to:
• information as to whether the Additional Party is to be joined as a Claimant or
a Respondent to the arbitration, and any relief or remedy sought by or against
the Additional Party; (Rule 21.4(c))
• a copy of the documentation in which the arbitration agreement is contained
in or in respect of which the nexus to the Additional Party arises from; (Rule
21.4(d))
• Note: This requirement caters to situations where the potential Additional
Party is not a party to the arbitration agreement.

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Rule 21 (Joinder of Parties)

• Rule 21.4 enumerates the requirements for Joinder Request, including, but not
limited to:
• a brief description of the legal and factual basis in support of the Joinder
Request, including the relief or remedy sought; (Rule 21.4(e))
• any Communication between the Parties relating to the intended joinder that
the requesting Party deems relevant to the Joinder Request (Rule 21.4(g))

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 Rule 21 (Joinder of Parties)

Response to
Joinder Request
Joinder Request

15 days

Any Party, including

Additional Party

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Rule 21 (Joinder of Parties)

• In deciding whether to allow the Joinder Request, in whole or in part, the Director
or the Arbitral Tribunal, as the case may be, shall consult all the Parties, including
the Additional Party, and have regard to all relevant circumstances considered
appropriate. (Rule 21.6)

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 Rule 21 (Joinder of Parties)

• Any decision by the Director pursuant to Rule 21.6 to allow the Joinder Request is
without prejudice to the Arbitral Tribunal’s power to decide any question as to its
jurisdiction arising from such a decision. (Rule 21.7)
• The Tribunal may maintain or overturn the Director’s decision to allow the Joinder
Request, especially if there is a challenge to the same.

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Rule 21 (Joinder of Parties)

• Other considerations:

• If a Joinder Request is allowed, the Director may, in his discretion, release any
arbitrator already confirmed or appointed, and thereafter appoint the Arbitral
Tribunal in accordance with the procedure in Rule 9.7. (Rule 21.8)

• The date on which the Joinder Request is allowed by the Director or the
Arbitral Tribunal, as the case may be, shall be deemed the date of the
registration of the arbitration in respect of the Additional Party. (Rule 21.9)

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 Rule 21 (Joinder of Parties)

• A joinder mechanism enables an Additional Party to be joined in an ongoing

proceeding as either Claimant or Respondent.
• This offers time and cost efficiencies to both parties, as well as a streamlined
resolution of disputes.

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2021 Rules – Rule 22 (Consolidation

of Proceedings)

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 Rule 22 (Consolidation of Proceedings)

• In relation to Rule 5, where claims arise out of multiple contracts, the Claimant
may file a single notice of arbitration with payment of a single non-refundable
registration fee pursuant to Rule 7, provided that a Consolidation Request is also
submitted to the AIAC pursuant to Rule 22.4.
• The 2021 Rules allow a multi-contract arbitration to commence through a single
notice of arbitration in relation to claims from multiple contracts between the
same parties.

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Rule 22 (Consolidation of Proceedings)

• In addition, at the request of a Party, the Director has the power to consolidate
two or more arbitral proceedings where the claims and counterclaims are made
under different arbitration agreements, provided that the dispute arises from the
same legal relationship and the arbitration agreements are compatible. (Rule
22.1(c))
• The dispute must arise from the same legal relationship and the arbitration
agreements must be compatible.

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 Rule 22 (Consolidation of Proceedings)

• Rule 22.3 enumerates the requirements for a Consolidation Request, including,

but not limited to:
• a copy of the documentation in which the arbitration agreement is contained
in or in respect of which the dispute referred to arbitration arises from; (Rule
22.3(b))
• a copy of any separate arbitration or submission agreement; (Rule 22.3(c))

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Rule 22 (Consolidation of Proceedings)

• In deciding whether to allow the Consolidation Request, the Director shall consult
all Parties and the Arbitral Tribunal, and have regard to all relevant circumstances
considered appropriate. (Rule 22.5)
• One factor includes whether the disputes under each arbitration concern the
same legal relationship.
• One factor includes whether the rights or reliefs claimed are in respect of, or arise
out of, the same transaction or a series of related transactions.

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 Rule 22 (Consolidation of Proceedings)

• Grant of Consolidation Request

• When two or more arbitrations are consolidated, they shall be consolidated

into the arbitration that commenced first, unless otherwise determined by the
Director after consulting the Parties. (Rule 22.7)

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Rule 22 (Consolidation of Proceedings)

• Dismissal of Consolidation Request

• Where the Director dismisses a Consolidation Request, then: (a) any

arbitrations that are not consolidated shall continue as separate arbitral
proceedings; and (b) in the event of claims arising out of multiple contracts,
the Claimant shall be required to issue separate notices of arbitration
pursuant to each contract and submit separate Registration Requests,
including the proof of payment of the non-refundable registration fee, in
respect of each arbitration. (Rule 22.6)

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 Rule 22 (Consolidation of Proceedings)

Parties may
Director’s agree on
Decision Arbitrators to
be appointed
15 days

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Rule 22 (Consolidation of Proceedings)

• Where a Consolidation Request is allowed, the Director shall determine a

reasonable sum for any fees and expenses payable to any arbitrator who is
released from the arbitral proceedings. (Rule 22.9)

• The Director’s decision to allow a Consolidation Request shall not affect the
validity of any act done or order made by any arbitrator who is released from the
arbitral proceedings pursuant to Rule 22.8. (Rule 22.10)

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 COMPLEX MULTI-PARTY MULTI-CONTRACT
CONSTRUCTION ARBITRATION UNDER SIAC RULES

Duong Hoang
Deputy Counsel at Singapore International Arbitration Centre (SIAC)

Duong speaks Vietnamese and English. Duong is qualified to practice law in

Vietnam.
Duong is now the Deputy Counsel of the Singapore International Arbitration
Centre (SIAC). Prior to joining SIAC, Duong worked as a counsel at a leading
international arbitration centre in Vietnam where she administered domestic and
international arbitration matters conducted under the auspice of the arbitration law of
Vietnam and UNCITRAL Arbitration Rules. She thereafter practiced international
arbitration with the Singapore office of a leading Vietnam-based law firm where she
focused on Vietnam-related matters in construction and petroleum sectors.

209
COMPLEX MULTI-PARTY MULTI-
CONTRACT CONSTRUCTION
ARBITRATION UNDER SIAC RULES

Duong Hoang, Deputy Counsel, SIAC

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KEY ISSUES

Part 1. Who we are

Part 2. Why SIAC
Part 3. Arbitrating at SIAC

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 Who We Are

 World Leader
 Global
 Expertise

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Who We Are

1 2
A S I A PA C I F I C WORLD
*Source: 2021 Queen Mary University of London and White & Case International Arbitration Survey: Adapting Arbitration to a Changing World

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SIAC’s Global Offices

New York Seoul

GIFT, Gujarat
Shanghai
Mumbai

Singapore

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Top 10 Foreign Users (2021)

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Why SIAC

 Gold-Standard Service
 Cost Efficient
 Trusted
 Innovative

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 Gold-Standard Service
Experienced

Efficient Responsive

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Costs at SIAC

 Certainty and Transparency - With an ad valorem

Schedule of Fees
 Flexibility
 Fair Cost Determination

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 Cost Efficient
Median duration of Median total costs of
arbitration for all tribunals arbitration for all tribunals
(months) (USD)

SIAC 11.7 USD 29,567

HKIAC 13 USD 64,606

LCIA 16 *Total costs of arbitration comprise the combined sum of tribunal fees and
USD 97,000
administration fees disclosed only.
Sources:
LCIA - http://www.lcia.org/News/lcia-releases-updated-costs-and-duration-analysis.aspx
SCC 13.5 Undisclosed SCC - http://www.sccinstitute.com/media/93440/costs-of-arbitration_scc-report_2016.pdf
HKIAC - http://www.hkiac.org/content/costs-duration
CMS - https://www.cms-holbornasia.law/en/sgh/publication/costs-and-duration-a-comparison-of-the-hkiac-lcia-scc-and-siac-studies

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Cost Efficient
Median duration of Median total costs of
arbitration for all tribunals arbitration for all tribunals
(months) (USD)

SIAC 11.7 USD 29,567

HKIAC 13 USD 64,606

LCIA 16 *Total costs of arbitration comprise the combined sum of tribunal fees and
USD 97,000
administration fees disclosed only.
Sources:
LCIA - http://www.lcia.org/News/lcia-releases-updated-costs-and-duration-analysis.aspx
SCC 13.5 Undisclosed SCC - http://www.sccinstitute.com/media/93440/costs-of-arbitration_scc-report_2016.pdf
HKIAC - http://www.hkiac.org/content/costs-duration
CMS - https://www.cms-holbornasia.law/en/sgh/publication/costs-and-duration-a-comparison-of-the-hkiac-lcia-scc-and-siac-studies

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 Trusted
USD 6.54 USD 1.95
billion billion
Total sum in dispute Highest sum in
for all new case dispute for a single
fillings with SIAC in administered case in
2021 2021

USD 21.81
million
Average value for all
new case filings in
2021

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Innovative

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 Expedited Procedure (EP)
821 479
Number of Number of
applications applications
received as at 31 granted as at 31
March 2023 March 2023

When may a Party What happens when application is

apply for EP? granted?
 When sum in dispute does not exceed SGD 6,000,000; or  Matter is referred to a sole arbitrator
 When parties agree; or  Award to be made within 6 months
 In cases of exceptional urgency
 Useful for lower-value, less complex disputes
 President of Court of Arbitration determines application English Vietnamese interpreting is available throughout the 15 program
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Emergency Arbitration (EA)

1  Concurrent with or following filing of a Notice of 2

Arbitration
 Prior to constitution of Tribunal Appointment is made within 1 day of receipt by
 Accompanied by payment of administration fee Registrar of application and payment of fee
and requisite deposits

2 3
Any challenge to appointment must be made within 2
days of communication by Registrar of EA Schedule for consideration of application by EA is
appointment and circumstances disclosed made within 2 days from appointment

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Emergency Arbitration (EA)
Timing of Awards and Enforceability

2.5 8.5 1
DAYS DAYS DAY
Average time between receipt of Average time between hearing on Shortest time between hearing on
an application to issuance of an the request for an emergency request for an emergency
interim order measure and issuance of an measure and issuance of an
award award

EA orders and awards enforceable in In majority of cases subsequently

High rate of voluntary compliance Singapore-seated arbitrations and constituted Tribunals affirmed
in practice arbitrations seated outside Singapore orders and awards issued by EA
under IAA

English Vietnamese interpreting is available throughout the 17 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Emergency Arbitration (EA)

To give summary reasons in writing for
Same powers as Tribunal
decision

POWERS No power to act after Tribunal is

Power to order any interim relief OF EA constituted

Order or award of an EA ceases to have

Interim order or award must be made within
effect if within 90 days a Tribunal is not
14 days from appointment
constituted

SIAC WAS THE FIRST ASIAN ARBITRAL INSTITUTION TO INTRODUCE EA PROVISIONS IN JULY 2010
English Vietnamese interpreting is available throughout the 18 program
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218
Emergency Arbitration (EA)

English Vietnamese interpreting is available throughout the 19 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Geographical Origin of Parties in EA cases (2010-2021)

English Vietnamese interpreting is available throughout the 20 program

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219
Analysis of Dispute Sectors in EA cases (2010-2021)

English Vietnamese interpreting is available throughout the 21 program

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Emergency Arbitration (EA)

SIAC Emergency Arbitration Fees

SIAC Administration Fee SGD 5,000 (+ GST if applicable)
Deposits for EA’s Fee* and Expenses SGD 30,000 (unless Registrar determines otherwise)
Total Payable upon Filing SGD 35,000 (+ GST on SIAC’s administration fee if applicable)
*EA’s Fee shall be fixed at SGD 25,000 (unless Registrar determines otherwise)
English Vietnamese interpreting is available throughout the 22 program
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220
Early Dismissal (ED)
As of 31 March 2023
First of its kind amongst major institutional rules for
commercial arbitration
59
Number of
30
 Parties may apply to Tribunal for Early Dismissal if applications
Number of
applications allowed
claim/defence is: received to proceed under
Rule 29.3
 Manifestly without legal merit (Rule 29.1(a)); or
 Manifestly outside jurisdiction of the Tribunal (Rule 29.1(b)) 22 were made under Rule 29.1(a)
2 were made under Rule 29.1(b)

 Procedure has potential to provide significant savings of

6 were made under Rule 29.1(a)
and/or 29.1(b)
time and cost Final Outcome:
 As a safeguard against unmeritorious applications, • 11 Granted (6 in whole; 5 in part)
Tribunal retains discretion to decide whether an • 14 Rejected (made under Rule 29.1(a))
• 1 Withdrawn
application for early dismissal should be allowed to • 4 Pending
proceed
English Vietnamese interpreting is available throughout the 23 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Joinder Consolidation
(Rule 7) (Rule 8)

 Allows both parties and non-parties to be joined in  After arbitration proceedings have been
pending arbitration proceedings under these Rules commenced, any party may make an application for
 Such an application may be made to SIAC Court of consolidation of multiple arbitrations
Arbitration (before Tribunal has been constituted) or  Such an application may be made to SIAC Court of
to the Tribunal directly (after constitution of Arbitration (before Tribunal has been constituted) or
Tribunal) to the Tribunal directly (after constitution of
Tribunal)

As of 31
March 2023
57
Number of
29
Number of
384
Number of
247
Number of
applications applications applications applications
received granted received granted

English Vietnamese interpreting is available throughout the 24 program

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221
 Arbitration Mediation Arbitration
SIAC-SIMC Arb-Med-Arb
Service is a one-stop
process where a dispute is  If mediation is successful, parties may request their mediated settlement
be made a consent arbitral award with advantages of enforceability
first referred to arbitration
under New York Convention
before mediation is
attempted  If mediation is unsuccessful, parties may proceed with arbitration
 The average settlement rate for mediation at SIMC is approximately 75%

As of 31
December 29 248 277
2022 Number of SIAC-SIMC Arb-Med-Arb Number of SIMC Mediation Cases Total number of Arb-Med-Arb and SIMC
involving parties from Australia, Brunei, Cayman Islands,
cases Cambodia, China, France, Germany, Hong Kong, India, Mediation cases
involving parties from BVI, Cayman Island, Germany, India, Indonesia, Isle of Man, Japan, Kazakhstan, Laos, Macau SAR,
Japan, Singapore, Switzerland, Taiwan, Thailand and UAE Malaysia, Maldives, Mongolia, Myanmar, Netherlands, Papua Total sum in dispute: > USD 3.1 billion
New Guinea, Singapore, South Korea, Taiwan, Thailand, UAE,
UK, US and Vietnam

English Vietnamese interpreting is available throughout the 25 program

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Arbitrating at SIAC

 International Arbitration Lifecycle

 Functions of the Secretariat

English Vietnamese interpreting is available throughout the 26 program

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222
International Arbitration Lifecycle
1 2 3 4 5

Arbitration Commencement Pre-Constitution Constitution of Set Procedural

Agreement of Arbitration Applications Tribunal Timetable

Evidentiary Document Written

Enforcement Award
Hearing Production Submissions

English Vietnamese interpreting is available throughout the 27 program

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Functions of the Secretariat

Appointment of Supervising Case Financial Scrutiny of Draft

Arbitrators Progress Management Awards

English Vietnamese interpreting is available throughout the 28 program

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223
(Revised as of 12 January 2023)
SIAC Model Clause
Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration
Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the
time being in force, which rules are deemed to be incorporated by reference in this clause.

The seat of the arbitration shall be [Singapore].*

The Tribunal shall consist of _________________** arbitrator(s).

The language of the arbitration shall be ________________.

[In respect of any court proceedings in Singapore commenced under the International Arbitration Act 1994 in relation to the
arbitration, the parties agree (a) to commence such proceedings before the Singapore International Commercial Court ("the
SICC"); and (b) in any event, that such proceedings shall be heard and adjudicated by the SICC.]***

* Parties should specify the seat of arbitration of their choice. If the parties wish to select an alternative seat to Singapore, please replace “[Singapore]”
with the city and country of choice (e.g., “[City, Country]”).
** State an odd number. Either state one, or state three.
*** The inclusion of this sentence is recommended if the arbitration commenced to resolve the dispute will be/is an international commercial arbitration,
and Singapore is chosen as the seat of arbitration. 29 program
English Vietnamese interpreting is available throughout the
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Q&A
Thank you!

English Vietnamese interpreting is available throughout the 30 program

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224
 HOW TO HANDLE COMPLEX CONSTRUCTION ARBITRATION VIA
KCAB RULES

Sangyub (Sean) Lee

Deputy Director of the KCAB INTERNATIONAL

Mr. Sangyub (Sean) Lee is the Deputy Director of the KCAB

INTERNATIONAL, Korean Commercial Arbitration Board’s international division,
also an attorney admitted to the New York State bar.
Prior to joining KCAB INTERNATIONAL, he had worked as a journalist and an
in-house counsel for one of the most influential local newspaper companies. He had a
role in trying to keep the public informed of KCAB’s achievements and potential
through writing a variety of articles, especially covering international arbitration.
Joining KCAB INTERNATIONAL, among his various responsibilities he is
mainly in charge of promotion of institution by managing diverse networks of the
international arbitration community, also administering international arbitration cases as
a case counsel, ensuring the efficiency and cost-effectiveness of the procedures under
the KCAB or UNCITRAL International Rules.
He has contributed with many activities in relation to the development of ADR
in Korea by leading the public relations efforts to further enhance the standing of KCAB
INTERNATIONAL – and Seoul as a seat of arbitration – for the domestic and global
users, including teaching students as an adjunct professor in Yonsei University
(Republic of Korea).

225
 COMPLEX
MULTI-PARTY MULTI-CONTRACT CONSTRUCTION ARBITRATION
AND ARBITRATION RULES

How to Handle Complex Construction

Arbitration via KCAB Rules
Sangyub (Sean) Lee / Case Counsel

English Vietnamese interpreting is available throughout the 1 program

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Tables

Part 1. General Background

- Rich Experience of Korean E&C Companies and KCAB
Part 2. KCAB’s International Arbitration Rules
- Joinder, Consolidation, Interim Measure, or Discovery
Part 3. KCAB’s Practice for User-friendly Approach

English Vietnamese interpreting is available throughout the 2 program

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226
 Korean E&C Companies’ Overseas Projects
Title: Overseas Construction Orders
Unit: Million USD

2012 2013 2014 2015 2016 2017 2018 2019 2020 2021

Total 64,877 65,206 66,009 46,144 28,190 29,005 32,115 22,327 35,130 30,616

(YoY,%) 8 1 1 -30 -39 3 11 -30 57 -13

Civil Engineering 8,794 18,128 5,664 8,504 6,440 5,139 7,162 4,539 9,838 5,859

Architecture 14,322 5,446 4,928 7,110 5,330 2,408 5,378 4,913 5,029 2,648

Plant 39,549 39,649 51,721 26,490 13,250 19,912 18,377 10,870 18,635 17,891

Electricity/Telecom
1,396 999 1,589 1,040 1,483 709 379 797 773 3,118
munication

Service 818 983 2,107 3,001 1,690 835 819 1,208 855 1,100

Source: International Contractor’s Association of Korea

Footnote:*Rate of increase/decrease is year on year(%)

English Vietnamese interpreting is available throughout the 3 program

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Rich Experience in Construction Disputes

By Sector Case #s Ratio
% by Sector
Construction 132 26.4%
Commerce 67 13.4%
Trade 33 6.6%
IT 78 15.6% Others
Entertainment 19 3.8% 13.4% Construction
26.4%
Maritime 18 3.6%
Real Estate Property 11 2.2% Entertainment
1.6% 3.8%
Intellectual Property 8
Labor Employment 4 0.8% IT 5.6%
Trade Commerce
Finance 4 0.8%
6.6% 13.4%
M&A, Joint Venture 9 1.8%
Others 67 13.4% KCAB: 2021 Data
English Vietnamese interpreting is available throughout the 4 program
Covid 19 117 23.4 Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Total 500 100%

227
Construction Projects in Vietnam
1998~2022 Running Total of Korean Investment to Vietnam by Sector

Investment
Sector # of Projects (million USD) Ratio (%)

Construction &
Real Estate 1146 12692.4 15.8

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Nationality of KCAB’s Users

Nationality Ratio (%)

America 15.7
Africa(Ghana) 2.0
Europe 17.6
Asia-Pacific 60.8 (Vietnam – 3rd largest user)
Middle-East(Iran, UAE) 4.0

English Vietnamese interpreting is available throughout the 6 program

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228
Enhancement of Bargaining Power
GDP Growth
01 Averaging 5.45%
between 1988 and 2019

Annual export growth

02 Averaging 9.27%
between 1988 and 2019

GNI per capita

03 Increased rapidly
from USD 67 in the 1950s
to USD 33,790 in 2019
English Vietnamese interpreting is available throughout the 7 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

KCAB’s International Arbitration Rules (effective as of June 2016)

 In case one of the parties is foreign entity, the International Rules apply
 Default Language of Arbitration : English
 Parties’ full autonomy to nominate its arbitrator (freely choose in the List or not)

 Reflects recent trends (in line with other leading

institutions’ Rules)
 Main Revision
 Emergency Measure by Emergency Arbitrator
(Apx 3)
 Joinder, Single Arbitration, and Consolidation
(Article 21, 22, & 23)
 Expanding the scope of expedited procedure
(Article 43~49)
 Introducing electronic methods (Article 4)

 Currently revising rules for announcement in early

2024 English Vietnamese interpreting is available throughout the program
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229
A multi-contract situation may arise where:

1. A party may request to add ‘new party’ into a single arbitration to be

resolved by a single tribunal
2. A claimant may make different claims arising out of different contracts in
its initial request for arbitration
3. On-going arbitrations resolving claim(s) arising out of different contracts
between the same parties may be ‘consolidated’ into a single arbitration

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Joinder
• Article 21. Joinder of Additional Parties
• The Tribunal may allow new party to be joined in the arbitration
proceedings by application of a party, provided that one of the following
conditions is met:
- All parties and the new party have all agreed in writing to the joinder; or
- The new party is a party to the same arbitration agreement with the
parties and the new party has agreed in writing to the joinder
• The Tribunal has a discretion to decide whether it allows the joinder or not
• Even if the new party is joined, this shall not affect the constitution of the
Tribunal
English Vietnamese interpreting is available throughout the 10 program
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230
Joinder - Consent of Parties

AIAC SIAC KCAB

All parties’ and All parties’ and All parties’ and
the new party’s consent the new party’s consent the new party’s consent
in writing (writing not mentioned) in writing

If the new party is prima If the new party is prima If the new party is in same
facie bound by same facie bound by same agreement, its’ consent is
agreement or if a joinder of agreement, it’s consent is only required
the new party is regarded not required
necessary, it’s consent is not
required

English Vietnamese interpreting is available throughout the 11 program

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Joinder – When and Who Decide?

AIAC SIAC KCAB

Before constitution of the Before constitution of the No specific timing requirement
Tribunal (no later than the filing Tribunal
of SOD and counterclaim) – the Court Only the Tribunal
– the Secretariat (the Director)
After constitution
After constitution – the Tribunal
– the Tribunal

All parties shall submit its

opinion within 15 days of receipt
of the joinder request
English Vietnamese interpreting is available throughout the 12 program
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231
Joinder – Requirements for Request

AIAC SIAC KCAB

• Case reference # • Case reference # N/A
• Names & Contact Details • Names & Contact Details
• New Party’s position • New Party’s position
• Relief or Remedy • A copy of arbitration
• A copy of documentation agreement
for arbitration agreement • Legal and factual basis
• Legal and factual basis
• Confirmation for receipt
of all parties

English Vietnamese interpreting is available throughout the 13 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Single Arbitration under Multiple Contracts

• Article 22
• The Secretariat may allow submission of claims arising out of multiple
contracts within a single Request for Arbitration, provided that:
- the Secretariat is prima facie satisfied that all of the contracts provide for
arbitration under the Rules,
- the arbitration agreements‘ compatibility is recognized, and
- the claims arise out of the same transaction or series of transactions.

English Vietnamese interpreting is available throughout the 14 program

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232
Consolidation

• Article 24. Consolidation of Claims

• At the request of a party, the Tribunal may consolidate claims if:
- on-going arbitrations are under the Rules and between the same parties,
and
- any one arbitrator of a tribunal has not been appointed in such separate
arbitration proceedings
• In determining whether or not to consolidate claims, the Tribunal shall
take into account the arbitration agreement(s), the nature of the claims,
and any other relevant circumstances
English Vietnamese interpreting is available throughout the 15 program
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Consolidation

AIAC SIAC KCAB

• All parties agree in writing; • All parties agree; • Between the same parties
• Under the same agreement; or • Under the same agreement; or
• Same legal relationship and • Same legal relationship / • The Tribunal decides
different but compatible Contracts consisting of a
agreements primary and its ancillary
contract / Same transaction or
• The Director decides series of transaction

• Before constitution
- The Court decides
• After constitution
- The Tribunal decides

English Vietnamese interpreting is available throughout the 16 program

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233
Maintain the status quo: Interim Measure
• Article 32 Conservatory and Interim Measures
• The Tribunal may order any of the measures at the request of the party:
- To maintain or restore the status quo pending determination of the dispute;
- To take action that would prevent current or imminent prejudice to the
arbitration proceedings;
- To provide a means of preserving assets; or
- To preserve evidence that may be relevant and material to the resolution of the
dispute.
• The Tribunal can grant that measure subject to appropriate security, furnished by
the requesting party in a form of an Order or an Award
• Before the request is submitted to the Tribunal, and in appropriate circumstances
even thereafter, the parties may apply to any competent judicial authority for
17 program
conservatory and interim measures. English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Maintain the status quo: Emergency Arbitration

• Appendix 3
• A party can request interim measure by emergency arbitrator before the
constitution of the Tribunal
• The Secretariat appoints a sole arbitrator within 2 days of receipt of such request
• Any party can challenge the said appointment within 2 days from notice of
appointment
• The emergency arbitrator may and shall order any measures within 15 days from
his appointment
• Emergency measure can be modified, amended, suspended, or terminated by the
Tribunal in whole or part.

English Vietnamese interpreting is available throughout the 18 program

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234
Discovery
• Article 26
• The Tribunal can order the parties to produce evidence and make any
property, site, or object under their control any time unless there is an
agreement in writing
• The Tribunal may order a party to provide a summary of evidence, which
will be presented, with the other party and them
• Each party has burden of proof, and the Tribunal may determine the
admissibility, relevance, materiality and weight of any evidence

English Vietnamese interpreting is available throughout the 19 program

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Expedited Procedure

• Chapter 6 Articles 43~49

• In case claim amount does not exceed KRW 500 million (USD 400,000)
• The Secretariat shall appoint a sole arbitrator unless otherwise agreed by
the parties
• The hearing shall generally be held only once unless the sole arbitrator
deems it more necessary
• The Award shall be made within 6 months from the date of constitution of
the Tribunal

English Vietnamese interpreting is available throughout the 20 program

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235
Time-efficient: Swiftness
International Arbitration Duration (Months)

Lxxx 20

Ixxx 18

Axxx 18

Sxxx 13

KCAB 11

ICC/AAA ICDR: “How to work with the Swiss Rules: The Counsel’s Perspective” by Gabrielle Nater-Bass
http://www.homburger.ch/fileadmin/publications/FIVEYEARSSWISS_01.pdf (From 2008) Footnote 21
LCIA: http://www.lcia.org/News/lcia-releases-costs-and-duration-data.aspx
SIAC: http://www.siac.org.sg/images/stories/articles/annual_report/SIAC_AR_2016_24pp_WEBversion_edited.pdf
KCAB: 2016 Data
English Vietnamese interpreting is available throughout the 21 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Cost-effective: Competitive Costs

Administrative Fees :
 In KCAB, the administrative fees increase step by step based on the amount in dispute interval

 Some leading institutions apply fixed fees in case the amount in dispute is either below or above certain
amount

 KCAB’s administrative fees do not exceed KRW 150,000,000 (appx. USD 120,000)

Arbitration Costs Example (Amount in Dispute USD 100 Million)

346,804
315,559 313,941

USD 191,721

KCAB Ixxx Sxxx Hxxx 22 program

* Since this is an abstract data, please only use this as a reference. (VAT and Miscellaneous English Vietnamese interpreting is available throughout the
costs not included) Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

236
Cost-effective: Competitive Costs
Arbitrator’s Fees :
 In KCAB, the arbitrator’s fees increase step by step based on the amount in dispute interval

 Like some leading institutions, KCAB applies fixed fees in case the amount in dispute is less than certain
amount

 In some institutions, you can choose either hourly rates or ad valorem

 KCAB arbitrator’s fees are predictable since KCAB does not apply hourly rates

Arbitrator’s Fees Example

(Amount in dispute USD 3.5 Million, Sole Arbitrator)
121,035

92,291
84,692
69,218
50,507
USD 27,142
12,149

Min Max
KCAB IXXX SXXX HXXX
English Vietnamese interpreting is available throughout the 23 program
* Since this is an abstract data, please only use this as a reference. . Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Cost-effective: Competitive Costs

Total Cost of Arbitration Total Cost of Arbitration
Cost
Sole Arbitrator Cost
Arbitral Tribunal
600,000 1,600,000

KCAB 1,400,000 KCAB

500,000
1,200,000
400,000
1,000,000

300,000 800,000

600,000
200,000
400,000

100,000 200,000

-
-

Amount in Dispute (USD) Amount in Dispute (USD)

Amount in dispute (1 million $) appx. 55% cheaper 24

English Vietnamese interpreting is available throughout the program
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237
 Virtual Hearing
• Article 16. Conduct of the Proceedings
• Subject to the Rules and any agreement between the parties, the Tribunal
may conduct the arbitration in any manner it considers appropriate,
provided that the parties are treated with equality and that each party is
given a fair opportunity to present its case at appropriate stages of the
proceedings
• The Tribunal shall hold hearings in order to examine witnesses or the
present arguments at appropriate stages of the proceedings unless
agreed otherwise

English Vietnamese interpreting is available throughout the 25 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Seoul IDRC: Cutting-edge Hearing Facilities

User-oriented Facilities &

Dedicated Services

Survey on Hearing Centre

Seoul IDRC, Preferences
Your Ideal Centre for
ADR Ranked 5th in IT Services
www.sidrc.org Source: Guide to Regional Arbitration (volume 7 - 2019)

The Seoul IDRC, located on the 18th floor of the Trade Tower, provides state-of-the-
art arbitration hearing facilities and professional services optimized for dispute
resolution proceedings. –
English Vietnamese interpreting is available throughout the 26 program
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Virtual Hearing Services - Arbitration Hearings, Mediation, Meetings, Conferences

238
 PANEL C2: KINH NGHIỆM TỪ BAN THƯ KÝ CỦA CÁC
TRUNG TÂM TRỌNG TÀI TRONG KHU VỰC KHI
GIẢI QUYẾT CÁC VỤ VIỆC TRỌNG TÀI PHỨC TẠP VỀ
XÂY DỰNG

PANEL C2: EXPERIENCES FROM SECRETARIAT OF

REGIONAL INSTITUTIONS IN DEALING WITH COMPLEX
CONSTRUCTION ARBITRATION

239
 Tan Cheng Hye Johnny
Moderator Independent Arbitrator
SIMI & SMC Accredited Mediator
Adjudicator

Johnny obtained his first degree in Architecture from the University of Western
Australia. He was a founding partner of LT&T Architects where he practised for almost
30 years. Johnny practises as an independent arbitrator. He is a Past President of the
Singapore Institute of Arbitrators (SIArb), having served two terms as President from
2007 to 2011.
Johnny is on the panel of several arbitration centres including SIAC, AIAC,
HKIAC, DIAC, SCIA, and LCIA. He is a member of the Advisory Council to the
National Commercial Arbitration Centre, Cambodia.
An accredited mediator with SIMI, Johnny is a Principal Mediator with several
mediation centres including the SMC, CCPIT/CCOIC Mediation Centre, MHJMC,
JIMC (Kyoto), IDDRMI, and SCMC.
An accredited adjudicator, Johnny also sits on the Construction Adjudicator
Accreditation Committee (CAAC) and the Singapore Infrastructure Dispute Protocol
Advisory Committee.
Johnny has held various positions in the Singapore Institute of Architects (SIA)
and served as its Vice-President from 1998 to 2000.
Johnny has been appointed as arbitrator in both institutional and ad hoc
arbitration cases. He has also been appointed as adjudicator as well as review adjudicator
in several adjudication applications.

240
 DEALING WITH COMPLEX CONSTRUCTION DISPUTES -
OBSERVATIONS FROM VIAC’S PRACTICE

Hang Vu Thi
Deputy Director of the Secretariat cum Head of
International Cooperation, Vietnam International Arbitration Centre (VIAC)

In nearly a decade working at Vietnam International Arbitration Centre (VIAC),

Hang has participated in directly administering over 300 arbitration cases at VIAC,
especially those with involvement of foreign parties and/or foreign arbitrators and
currently leads the Counsel team at VIAC Hanoi. Hang is assiting the Secretary General
in R&D activities that target to the renovation and improvement of arbitration
procedures at VIAC and to new services of arbitration and other ADRs to be provided
by VIAC. Hang is also in charge of organizing internal workshops for VIAC’s listed
arbitrators to encourage the exchange of experience and arbitrator skills for better
quality of arbitration at VIAC.
As a member of VIAC’s Science Council, Ms. Hang has participated in research
activities of the Council, directly attending to comment on legal documents regulating
commercial and arbitration activities in Vietnam (the Civil Code, Commercial Law,
Enterprise Law, Law on Commercial Arbitration, etc.). Hang is the host of VIAC’s
annual series focusion on arbitration – VIAC’s Arbitration Series (VAS in 2020, 2021,
2022 and counting).
With regard to international cooperation, Ms. Hang is in charge of international
cooperation activities regarding arbitration and ADRs methods, coordinating
cooperation activities with VIAC’s international partners focusing on raising the
awareness of public on ADRs, enhancing knowledge and experience of ADRs users in
Vietnam, and promoting commercial arbitration as well as other ADRs in Vietnam
collectively.

241
 DEALING WITH COMPLEX CONSTRUCTION
DISPUTES - observations from VIAC’s practice
VIETNAM INTERNATIONAL ARBITRATION CENTRE

HANG, VU (Ms)
Deputy Director, SECRETARIAT
VIETNAM INTERNATIONAL ARBITRATION CENTRE (VIAC)
[email protected]
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Trade
33%
Others
26%

CONSTRUCTION DISPUTES AT VIAC

60 20%
Lease
50
15% 7%
40
Real-estate
30 10% 7%
20
5% Construction
10
14%
Finance
0 0% 10% Insurance
4%

Construction cases Percentage of construction cases

~ 83 Mil USD
16.8%
Foreign-element
2022 81% total amount value in
dispute at VIAC
disputes
2402 50.7% ~ 908 Mil USD
32.5% CASES
Domestic disputes
“mere Vietnamese”
39% total amount value
FDI-element in dispute at VIAC 2 program
English Vietnamese interpreting is available throughout the
Disputes (with a
Vietnamese party) Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

242
CONSTRUCTION DISPUTES AT VIAC (Cont)
Energy, Mining Projects Disputing issues

Others (retention,
Contract Contractor’s unilateral termination
Real Estate Projects (Office Employer’s Violations
management Violations of the contract,
Building, Apartment Building, compensation…)
Factories)

Quality (Construction
Multi-tiered dispute Construction Site
methods, Acceptance
resolution procedure Management
Infrastructure Projects test)
(Express way, Bridge, Seaport,
Airport, Hospital, etc.)
Construction
Applicable Law Schedule & Delays in approval
Time of Completion

Civil Construction projects

Cost overrun
(variations, change of Payment
law, etc)
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SOME OBSERVATIONS

Negotiation Mediation PRIMARILY MULTI-TIERED DISPUTE

SOPHISTICATED MULTI-TIERED RESOLUTION CLAUSE
DISPUTE RESOLUTION CLAUSE
Exp: If any dispute arises in connection
FIDIC Model Dispute resolution with this agreement, the parties shall first
clauses negotiate in a good faith effort to resolve
Expert Adjudication the dispute. Where the Parties failed to
Determination Board negotiate, any Parties can initiate an
Arbitration at Vietnam International
Arbitration Centre (VIAC) to resolve the
dispute

2 tiers dispute resolution clause

Arbitration Parties must go through all the way as agreed in
/Litigation the Multi-tiered dispute resolution clause until
they settle the dispute?
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PROS AND CONS OF MUTIL-TIERED DISPUTE
RESOLUTION CLAUSE
Advantages Disadvantages Opinions of Court and Arbitration

• Preserve the business • Waste of time and resources • Condition Precedent or

relationship without an expecting outcome procedural condition?
• Time and cost efficiency • Procedural abuse (Eg: time- • Would there be any significant
• Can be ultilised as a filter barred issues) obligation?
• Interim measure? • Words choice? Shall/must vs.
• Additional request at pre- could/may
condition steps of arbitration • Consequence for violation of
proceedings? MTDR?
Some notes:
• Parties should set out clear preconditions as to the process of MTDR, whether it would be a two-tiered process or a multi-tiered process if any dispute arises.
• Parties should agree on the commencement of time limits to arbitration, whether it would include the duration of prior steps, if any dispute arises.
• Article 192.1 Code of Civil Procedure + Article 3.1 in Resolution 04/2017/NQ-HDTP: The Courts shall return the lawsuit petitions if a party does not fully satisfy
the conditions to initiate a lawsuit prescribed by the Code of Civil Procedure and other laws. 5 program
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SOME OBSERVATIONS (Cont)

MULTI-PARTY ARBITRATION

Types Procedure Issues

Multiple parties to the same Incongruous dispute resolution clauses in multiple contracts
contract <Consortium contracts, SHAs>
Additional parties to arbitration once tribunal has been
Multiple contracts with different constituted.
parties <Financing documentation>
Consolidation of cases in an Arbitral Tribunal for contracts.
Signing contracts among the employer with the
Confidentiality
main contractor and sub-contractors
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SOME OBSERVATIONS (Cont)
 Experts have participated in VIAC Procedures including:

Legal Expert, Expert of Damages, Delay Expert; Financial expert, Expert of construction
quality.
PARTICIPATION OF EXPERTS IN
 Procedures of Expert Participation at VIAC:
CONSTRUCTION ARBITRATION AT
• Expert report/ Joint expert report
VIAC
• Hot-tubbing
Relatively common, both in Vietnamese and International arbitration courts.
 Experts’ advice/opinion is highly considered in construction Arbitration due to:

• The complex & technical issues in the case

• Credibility and weighing of the evidence presented to Tribunal

English Vietnamese interpreting is available throughout the 7 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

THE LEGAL COSTS IN ARBITRATION AT VIAC

85% claims on recovery of legal costs Highest granted amount of lawyer’s
Lawyer’s fees are recoverable granted (partially or wholly)
upon request of party fees:
~109.8 Bil VND
15% cases where supporting evidence for
recovery of legal costs determined [~4.5 Mil USD]
insufficient
Foreign lawyers can practice at
VIAC In a case of value in dispute:
5% cases where Respondent only claims
for recovery of legal costs ~ 5,600 Bil VND
[~236 Mil USD]
Favorable policy of waiving
arbitration fees for the legal
costs claim 26 cases where a legal team consisting of 2
or more law firms (collab) to defend a party

Cases with Lawyer’s 2017 2018 2019 2020 2021 2022

8
participation 47,8% 52% 60% 60.6% 59.7% 62.4% English Vietnamese interpreting is available throughout the program
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 VIETNAM INTERNATIONAL ARBITRATION CENTRE
AT THE CHAMBER OF COMMERCE AND INDUSTRY

ABITRATE IN VIETNAM
– CHOOSE VIAC

VIETNAM INTERNATIONAL ARBITRATION CENTRE Hồ Chí Minh Branch

Head-quarter
VCCI Tower, 171 Vo Thi Sau, District No. 3, HCM
VCCI Tower, 9 Dao Duy Anh, Dong Da Dist, Hanoi
Phone: (84.24) 3 574 4001 - Fax: (84.24) 3 574 3001 Phone: (84.28) 3 9321632 - Fax: (84.28) 3 932 0119
Website: www.viac.vn - Email: [email protected] Website: www.viac.vn - Email: [email protected]
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246
 NCAC’S EXPERIENCE IN DEALING WITH COMPLEX
CONSTRUCTION ARBITRATION

Fanita Math
Secretary General of National Commercial Arbitration Centre
(NCAC, Kingdom of Cambodia)

Fanita MATH is a young, dynamic Cambodian legal professional who has gained
a wealth of experience in various roles within the education and legal sectors.
Fanita MATH began working as a legal officer at the National Commercial
Arbitration Centre (NCAC) in the Kingdom of Cambodia in 2018. She was also
responsible for the organization of training and events for the NCAC. In 2021, she got
promoted to Deputy Secretary General and subsequently Secretary General at the end
of 2022, where she oversees the NCAC’s day-to-day operations, manages staff
recruitment, and is responsible for all financial management and reporting.
Prior to her involvement in the world of arbitration, she was appointed as a school
director at the age of 24 years old, where she got the opportunity to manage the whole
school and deal with complaints. This management experience has served her greatly in
her current position at the NCAC.

247
NCAC’s Experience in
dealing with complex
construction arbitration
Fanita MATH
Secretary General, NCAC

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Content:

I. About NCAC
II. Construction Sector in Cambodia
III. Construction Arbitration in NCAC

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I. About NCAC
The concept of arbitration was
firstly introduced in Cambodia
66 years ago. Cambodia also
quickly became party to New 1954
York Convention in 1960.
Royal Kram on Form and Effect of Arbitration
New law on commercial Agreement and Arbitration Clause in Commercial 2001
Transaction (Repealed)
arbitration was adopted in Reconfirmation the accession to New York Convention
2006 establishing NCAC as
independent arbitration body
in Cambodia for the very first
time. 7 years later, NCAC was
officially launched.

1960 2005
Acceded to New York Convention Entry into force of ICSID Convention

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BACKGROUND

2010
2006 Sub-decree 182 on Establishment of
Law on Commercial Arbitration Arbitrator Selection Committee

2013
OFFICIAL LAUNCH OF NCAC

2009
Sub-decree 124 on Organization and
Functioning of the NCAC

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249
NCAC PANEL OF ARBITRATOR
• As of January 2023, there are 70 arbitrators in
NATIONALITIES OF panel of arbitrators of NCAC.
ARBITRATORS
 61 Cambodian national
Foreign
National • 9 Foreign national
11%

Cambodian  American  Singaporean

National  French  Chinese
89%
 Japanese  Canadian
Cambodian National
Foreign National

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• As of January 2023, NCAC has administered 31 cases with total amount in dispute approx.
USD 90 Million.
• The NCAC has administered disputes involves:

 Banking & finance

 Real estate
 Construction
 Corporate & commercial
 International trade

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250
 7

20%
Construction

Sectors in dispute

Trade Corporate
12% 12%

Banking & Finance Real Estate

18%
Sectors 38%

In dispute

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Foreign parties: NATIONALITIES OF PARTIES

Cambodian Parties Foreign Parties

 British
 Japanese
 Singaporean
 Chinese
 Malaysian

English Vietnamese interpreting is available throughout the 8 program

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251
 Recognition

Emergency arbitrator

Award recognized by
High Court of Singapore
0 An emergency arbitration
proceedings was
05
through the application of
successfully conducted
New York Convention
under 2021 NCAC Rules.

Online hearing/meeting
Set aside/Refusal
were conducted in
Online hearing
accordance with

01 No NCAC award has been

01 arbitration rules.

set aside or refused to be

recognized and enforced.
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II. Construction in Cambodia

2021 2022
• 3,925 construction projects nationwide\ • 3,827 construction projects nationwide
• 12,684,102 square meters • 6,596,936 square meters

USD 5,210,359,509 Investment value USD 2,634,992,100 Investment value

Since 2000, until 2022 Ministry of has issued construction permits for 61,418 projects with total area
of 173, 213, 756 square meters with the total estimated investment cost of USD 68, 837, 543, 805.

*Ministry of Land Management, Urban Planning and Construction General Assembly Report.
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252
 II. Construction in Cambodia

2003 2019
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Photos Credit: Reddit

II. Construction in Cambodia

2010 2019
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Photos Credit: Reddit

253
 III. Construction Arbitration in NCAC

According to Ministry of Land Management, Urban Planning and Construction General Assembly Report
in 2022, there more then 6o thousand construction permits has been issued since 2000.

There are 20 percents of NCAC cases were construction related disputes, some of the cases are very
complex in both factual and legal issue.

English Vietnamese interpreting is available throughout the 13program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

14

Complex factual
& Legal issue
Complex Construction Arbitration Challenges

Multiple Parties Expert avaluation

Big Claim Issues Timing

In dispute

English Vietnamese interpreting is available throughout the program

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254
 EXPERIENCES FROM SECRETARIAT OF REGIONAL INSTITUTIONS IN
DEALING WITH
COMPLEX CONSTRUCTION ARBITRATION

Albert Zaw Min

President of Myanmar International Arbitration Centre (MIAC)

Albert Zaw Min is Founder and President of Myanmar International Arbitation

Centre ( MIAC ). He is currently participating as Joint-Secretary of Intellectual Property
Proprietors Association of Myanmar (IPPAM) and General Secretary of Myanmar Bar
Association (MBA)
Experienced in various legal consultant services for more than 30 years, he have
practiced the all type of cases in both maritime and aviation fields, general insurance
and reinsures claims including those arising under professional indemnity and personal
accident policies, subrogation and product liability claims, P & I Club disputes and crew
personal injury cases in maritime industry, various IP rights such trademarks, copyrights
and etcs…,
Albert Zaw Min also participated in drafting various Myanmar Laws drafting as
free legal service for Union and Regional/State Government. He participated as Legal
Consultant Team member of Union of Myanmar Federation for Chamber of Commerce
and Industry ( UMFCCI )
Johnny obtained his first degree in Architecture from the University of Western
Australia. He was a founding partner of LT&T Architects where he practised for almost
30 years. Johnny practises as an independent arbitrator. He is a Past President of the
Singapore Institute of Arbitrators (SIArb), having served two terms as President from
2007 to 2011.
Johnny is on the panel of several arbitration centres including SIAC, AIAC,
HKIAC, DIAC, SCIA, and LCIA. He is a member of the Advisory Council to the
National Commercial Arbitration Centre, Cambodia.
An accredited mediator with SIMI, Johnny is a Principal Mediator with several
mediation centres including the SMC, CCPIT/CCOIC Mediation Centre, MHJMC,
JIMC (Kyoto), IDDRMI, and SCMC.
An accredited adjudicator, Johnny also sits on the Construction Adjudicator
Accreditation Committee (CAAC) and the Singapore Infrastructure Dispute Protocol
Advisory Committee.
Johnny has held various positions in the Singapore Institute of Architects (SIA)
and served as its Vice-President from 1998 to 2000.
Johnny has been appointed as arbitrator in both institutional and ad hoc
arbitration cases. He has also been appointed as adjudicator as well as review adjudicator
in several adjudication applications.

255
 Experiences from Secretariat of regional
institutions in dealing with
complex construction arbitration
Presented by Picture
Albert Zaw Min
LL.B., P.M.G. LL.B., P.M.G.2nd Class, GMDSS G.O.C. (U.K), MPA.
Of Speaker
DL 1 DL-01 & DL-201 ( Distinction), DL-450 (WIPO)
President of Myanmar International Arbitration Centre ( MIAC )
Incorporated
Mobile: +95-951-63484 / 95-979-5433058
Email: [email protected]
Facebook: Myanmar International Arbitration Centre
English Vietnamese interpreting is available throughout the 1 program
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Map of ASEAN Member States

On 8 August 1967, five leaders – the Foreign Ministers of
Indonesia, Malaysia, the Philippines, Singapore and
Thailand – sat down together in the main hall of the
Department of Foreign Affairs building in Bangkok,
Thailand and signed a document. By virtue of that
document, the Association of Southeast Asian Nations
(ASEAN) was born. The five signers are Adam Malik of
Indonesia, Narciso R. Ramos of the Philippines, Tun
Abdul Razak of Malaysia, S. Rajaratnam of Singapore,
and Thanat Khoman of Thailand – would subsequently
be hailed as the Founding Fathers of probably the most
successful inter-governmental organization in the
developing world today. And the document that they
signed would be known as the ASEAN Declaration.
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256
 Flags of ASEAN member states

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THE SECRETARIAT OF REGIONAL INSTITUTIONS

• The Secretariat is a key player in any institution, Secretariat is a global independent expert services and litigation
consulting firm. Distinguished for the depth and breadth of our experienced experts, today people serve
international law firms and corporations, addressing a broad range of disputes and economic challenges.

• Any institution may operate in commercial and arbitration such as delivering a broad range of services, including
economic damages, valuations, forensic accounting and quantum and delay analysis in construction disputes. Its
knowledge and expertise span all major industries, and we have given testimony in the most complex arbitration,
mediation and trial formats around the globe.

• Its work and culture are driven by passion, pride, and performance. This powerful mix from its distinct approach to
making the complex simple to the way we mentor our up-and-coming talent to become trusted experts early in their
careers, its cohesive team performs time and again in the most challenging situations. Together, this forms the
foundation of its experience above all’ character that is woven into every aspect of work.
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 The Secretariat should keep contact with South Asian
Association for Regional Cooperation ( SAARC ), Regional
Cooperation and Integration (RCI), Regional Cooperation and
Program (RCSP), South Asia Subregional Economic
Cooperation Program (SASEC), Bay of Bengal Multi-Sectoral
Technical and Economic Cooperation (BIMSTEC), Council of
Regional Organizations of the Pacific (CROP) and Middle East
and North Africa (MNEA) Region.
English Vietnamese interpreting is available throughout the 5 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Seven Steps to Success in Complex Construction Arbitration

 In business and especially the engineering and construction industry, time is money.
Its conversations with general counsel from engineering and construction companies
of all sizes consistently reinforced the ongoing need to improve the construction
arbitration experience for these users. The General Counsels (GCs) are looking for
arbitrators and advocates who understand business realities and will streamline the
process and make it more cost-effective. The following advice will help construction
arbitrators and counsel provide GCs the dispute resolution results they expect.

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 1. Thinking outside the box: Is there a streamlined alternative to arbitrating all issues?
• Many construction disputes involve competing claims. Consider whether there is an issue (or issues) that needs to be
adjudicated in order to permit the rest of the claims to be resolved without going through a full-blown arbitration. If
the parties have a tiered dispute resolution clause and have gone through mediation or executive negotiations before
filing arbitration, they may be able to identify such an issue.
• If a preliminary determination can resolve a roadblock to settlement, see if the parties can agree to resolve that issue
first. Even better: See if the preliminary determination can be made on a streamlined basis with limited briefing and a one-day
hearing.
 A success story inspired this tip. It comes from in-house experience and concerns a construction dispute between an owner
and a contractor. At mediation, eg. the parties were able to negotiate a value for the contractor’s $40 million primary claim but
could not agree on the validity or value of the owner’s $20 million counterclaims. Instead of proceeding with a full arbitration
of that counterclaim, the parties agreed to a settlement that provided for an adjustment to the payment due the contractor, an
amount between $0 and $8 million, based on how an agreed-upon neutral valued the counterclaims. We chose a neutral and
agreed to limited (in time and length) briefing and a one-day hearing. The neutral, who was not informed about the
settlement, was simply tasked with assessing the validity of the counterclaims and providing a dollar value for those found
valid. The award was due within a week of the hearing, with no supporting explanation or reasoning. The settlement
agreement provided that a $20 million valuation would add nothing to the settlement amount and a $0 valuation would add
$8 million to the settlement amount. The percentage of $20 million of anything in between would add a like percentage of $8
million to the award. So that case may be resolved in few months, and the clientsEnglish
will be thrilled.
Vietnamese interpreting is available throughout the program
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2. Streamline hearings and reduce discovery costs by using written witness statements

• In complex construction arbitrations, particularly in multiparty disputes, attorneys’ fees can

approach—and sometimes exceed—the amount at issue. The last thing GCs, on any side of a dispute,
want is for attorneys’ fees to dwarf the actual award. Depositions, particularly in multiparty
construction disputes, can send discovery costs soaring. Parties are reluctant in arbitration to limit
depositions because lawyers understandably hate to be unprepared.
• At the preliminary case management conference, arbitrators and counsel should encourage the use
of written witness statements in lieu of direct testimony. The beauty of written witness statements is
that they often eliminate the need for depositions of those witnesses. All counsel will know what the
direct testimony of a witness will be. They will be able to cost- effectively plan their cross-
examination without incurring the expense of deposing the witness and without any of the other
parties incurring the expense of attending. At the evidentiary hearing, the witness can quickly affirm
the contents of their witness statement and then be turned over for cross- examination. In
experience as in-house counsel, which was confirmed by the GCs interviewed, using written witness
statements can save as much as 30% of the time and cost of an evidentiary hearing.
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3. Encourage the effective use of experts through presentations and the joint examination of
experts
Expert testimony, while crucial, can be incredibly costly in complex construction arbitrations. To help GCs value-
engineer the use and extent of expert evidence, offer the following suggestions:

a. At the preliminary management conference, arbitrators should encourage the experts to provide their opinions
through PowerPoint or another type of visual presentation instead of in a written report. Because such
presentations can be more effective at persuasively conveying the experts’ opinions to the tribunal, experts may
be asked to prepare such presentations in addition to the usual lengthy, written reports. Although some written
appendices may be needed, suggesting at the beginning that as much of an expert’s testimony as possible come
in a more persuasive, digestible (shorter) format will increase its effectiveness and hold down costs.
b. Have the experts from the same discipline/on the same topic meet and confer without counsel and prepare a
joint report setting out what they agree upon and where they differ, instead of creating individual reports. Then
the hearing can be streamlined and focus on how and why they disagree. To increase efficiency even more, the
experts should be present and examined together at the hearing. GCs are fans of this practice, which is often
known as “hot-boxing” or “hot-tubbing.” Such an approach is common in international arbitrations, and GCs
would like to see it used more in domestic construction arbitrations. Now that we’re used to hybrid and virtual
hearings, this should be easy to achieve. English Vietnamese interpreting is available throughout the program
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4. Be prepared
Remember that companies choose arbitration in large part because they want to make sure that their disputes
are decided by someone with the expertise and the ability to understand the issues. While understanding the
issues requires an investment of time that state and federal trial court judges don’t have, there should be no
such excuse for arbitrators. Yet the GCs I interviewed expressed frustration at attending an evidentiary hearing
and discovering their arbitrators were not familiar with the record or had not read all the documents and
exhibits that had been submitted. To deliver what GCs expect from arbitration, practitioners and arbitrators
should make sure they understand the record and the issues.

5. Remind the parties to focus on damages.

The lion’s share of the parties’ submissions and hearing time often is spent on liability issues. To help GCs get
what they want from the process, prioritize discussing damages. Making sure that the parties devote enough
time to damages will improve the quality of awards, regardless of the decision.

English Vietnamese interpreting is available throughout the 10 program

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260
6. Cue the chess clock.
Encourage shorter hearings and more efficient use of hearing time by using a chess clock. The use of a chess clock and the
amount of time each party will be allotted should be discussed and decided at the preliminary conference. The hearing
time does not have to be evenly divided and should depend on the number of witnesses and particular issues for each
party. Charging the time each party spends asking questions against its predetermined and limited time allocation
encourages all parties to take a more concise approach to the introduction of evidence.

7. Keep the endgame in mind.

Limit and define post-hearing briefing. Discuss early on what will happen at the end of the evidentiary hearing. Pre-hearing
briefs laying out the facts and legal issues can be very helpful to the arbitrator’s preparation. But after the evidence has
come in, repeating the arguments in post-hearing briefs can be a high-cost, low-value exercise. Under such circumstances,
if the parties want post-hearing briefs, consider limiting submissions to a list of issues on which the arbitrator says they
need more information or analysis, after they have heard the evidence. This will better focus post-hearing briefing,
consistent with clients’ goal of cost-effectiveness.
Consider discussing the operative rules on attorneys’ fees awards at the preliminary conference. If there is no contractual
or statutory basis for an attorneys’ fees award, GCs and their clients may want to know the arbitrator’s views on whether
fee shifting is available under the applicable rules. Particularly in multiparty, complex construction cases, it is not always
11 program
obvious how the arbitrator should determine when someone is a prevailing party.English Vietnamese interpreting is available throughout the
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Enhancing Efficiency in Complex Construction Arbitration with

a Focus on the MENA Region
Due to the acceleration of infrastructure projects I the MENA region, construction disputes rank first
among the disputes arbitrated before arbitral institutions. Construction arbitrations are known to be
complex and thus costly and time-consuming. Given the importance of the construction industry in
the MENA region, this article will examine the various mechanisms, which can be used either in the
pre-arbitration phase or during the arbitration procedure itself, to streamline the arbitration process
and help manage the time and costs of such disputes.

English Vietnamese interpreting is available throughout the 12 program

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1. Pre-arbitral mechanisms: filtering the issues prior to the commencement of
arbitration:
(a) In construction projects, parties have helped to elaborate a series of dispute prevention and resolution measures,
such as expertise, arbitration, expedited arbitration, fast-track arbitration and mediation, insofar as commercial
imperatives command that disputes be resolved rapidly, efficiently and cost-effectively;

(b) For instance, the Dubai Court of Cassation in Case No. 204/2008 ruled that contractually prescribed amicable
dispute resolution procedures must be completed before arbitration can be commenced. These procedures
include notably mediation and or adjudication;

(c) The scope of available means for the effective resolution of construction and infrastructure disputes in the MENA
region has never been more varied, nor has there ever been a better opportunity to apply innovation and creative
techniques.
eg. The Federation Internationale Des Ingenieurs Conseils(FIDIC) contracts, and in particular the FIDIC Red, Yellow and
silver books issued in 2017, highlight the role of dispute boards and recommend the use of Dispute Avoidance and
English Vietnamese interpreting is available throughout the 13 program
Adjudication Boards. (DAABs ). Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

2. Institutional rules: and efficient and time-saving framework

a) First, for the administration of large –scale construction disputes and arbitrations in
the MENA region, parties
most commonly chose the International Chamber of Commerce (ICC) and the London Court of International
Arbitration (LCIA);

b) Other notable regional institutions include the Cairo Regional Centre for International Commercial Arbitration
(CRCICA), the Dubai International Financial Centre-London Court of International Arbitration (DIFC-LCIA), the
Dubai International Arbitration Centre (DIAC), the Abu Dhabi Commercial Conciliation and Arbitration Centre
(ADCCAC), Qatar International Centre for conciliation and Arbitration (QICCA), the new Casablanca International
Mediation and Arbitration Centre (CIMAC), and the Bahrain Chamber for Dispute Resolution ( BCDR ).

English Vietnamese interpreting is available throughout the 14 program

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3. Tools generated by the practice:
3.1. Pre-arbitration tools related to evidentiary documents and ensuring the efficiency of an upcoming construction
arbitration:
- In the construction field, disputes are known to be fact and document-heavy, as well as long-running.
- Because of the large quantity of documents an arbitration may require, it is recommended that the parties, before the
commencement of an arbitration, agree upon an efficient document management system.
(a)Building a “Paper Trail”:
To ensure the efficient organization of an upcoming construction arbitration, the parties should cautiously gather the documents
which were used during the life of a construction project, extracting potential evidence from a large and unorganized quantity of
documents:
- Pre-contractual and contractual documentation: these documents primarily include specifications, drawings, geotechnical
data or clarifications of the tender requirements provided by the owner, on one side, and the contractor’s calculations, labor
productivity assumptions, internal reports and worksheets, on the other side.
- Different versions of the schedules: this type of document may be used to demonstrate the liability for delays and/or the
entitlement to an extension of time.
- All correspondence between the parties (technical. Legal, etc.) and all records: every meeting, negotiation and
transaction, and follow-up on any oral conversation with e-mails and notes.
15 program
- English Vietnamese interpreting is available throughout the
Cost documentation: these include all the invoices, receipts and proofs of payment. They serve
Tất cả bài tođều
trình bày evidence the
có dịch cabin sangquantum
tiếng Việt of a
potential cost claim.

(b) Use of EDMS:

(i)Electronic document management software (EDMS) is key to facilitating the sorting and analysis of
voluminous documents. EDMS allows its user to filter out irrelevant documents in the early stages of the
dispute and therefore extensively reduce the number of documents that need to be reviewed;
(ii)Moreover, the documents stored in the EDMS can be accessed by various users at the same time and from
multiple devices. The information from the EDMS can also be quickly transferred to external users, including
the other party or the arbitrators;
(iii)With such new technology, parties can search and analyze documents based on chronology or subject
matter, which can be helpful when it comes to crafting and developing a convincing thesis of the facts that
will help a party win its case.

3.2. Practical tools for the arbitration proceedings:

The following tools are recommended to both arbitrators and parties.
(a)Electronic tools during documents production:
(i) Construction arbitrations are often won or lost depending on the availability and relevance of documents
generated at the time of the events giving rise to the dispute;
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263
(ii) during the arbitration proceedings, and usually within the context of a specific phase on document production,
also known as discovery, a party may request all types of documents. Some arbitrators may view this process as a
finishingexpedition. Tribunals generally prefer the traditional method of document production, i.e. the production
of specific documents, notably as defined in the IBA Rules on the Taking of Evidence in International Arbitration
and the Rules of the International Centre for Dispute Resolution (ICDR).

(b) The Scott Schedule:

i. Most construction disputes are multi-faceted, dealing with various causes of action and heads of claim;
ii. The Scott Schedules is referred to by some scholars as nothing less than the antitheses of pleadings consist
in the parties formulating their basic positions and claims, together with the most important arguments
supporting their assertions, indifferent columns according to the following sequence.
They are:
(aa) the claimant enumerates its allegations first;
(bb) the respondent replies to each of the issues, normally by including a statement on whether the respective
allegations are agreed or denied;
(cc) the tribunal rules upon the claims are dined by the respondent. English Vietnamese interpreting is available throughout the 17 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

CONCLUSION:
The Secretariat is key player as well as principal role in any institution
so that its experiences were relied on enhancing the activities of the
institution.
Its experiences may share in dealing to settle down amicably with
construction disputes in complex construction arbitration.
Its experiences also required steps to success in complex construction
arbitration.

English Vietnamese interpreting is available throughout the 18 program

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Motto of Myanmar International Arbitration Centre
(MIAC)

Transparency Honesty Righteousness

English Vietnamese interpreting is available throughout the 19 program
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Dear All Honourable Attendees,

• On behalf of the People of Myanmar, I do hereby

Cordially said that
• Warmly welcome to visit Myanmar ;
• Warmly welcome to do business in Myanmar;
• Warmly welcome to invest various manufacturing
and various services in Myanmar
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BUỔI CHIỀU - PHÒNG KHÁNH HỘI - NHÀ RỒNG
PHẦN D: TIẾN HÀNH THỦ TỤC TỐ TỤNG VÀ
QUẢN LÝ VỤ VIỆC TRỌNG TÀI XÂY DỰNG PHỨC TẠP

AFTERNOON - ROOM KHANH HOI- NHA RONG

SECTION D: CONDUCT OF PROCEEDINGS AND CASE
MANAGEMENT FOR COMPLEX CONSTRUCTION
ARBITRATION

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 PHIÊN D1: CHIẾN LƯỢC DÀNH CHO NGUYÊN ĐƠN VÀ
BỊ ĐƠN ĐỐI VỚI VỤ VIỆC TRỌNG TÀI XÂY DỰNG

PANEL D1: CASE STRATEGY IN CONSTRUCTION

ARBITRATION FOR CLAIMANTS AND RESPONDENTS

267
 Moderator Dr. Net Le
Partner at LNT & Partners

Le Net is a paneled arbitrator of Singapore International Arbitration Centre

(SIAC) and Vietnam International Arbitration Centre (VIAC) where he either chaired or
co-arbitrated in many construction cases, many of them are complex ones. As a counsel
he led many cases at ICC, SIAC, VIAC and Swiss Cham. Many of the cases involved
major infrastructure or real estate development. Net is also the first who introduced
UNIDROIT Principles of Commercial Contracts to Vietnam in 1999. He earned LLB at
Warsaw University, LLM at Katholieke Universiteit Leuven and PhD at London School
of Economics. He is a partner at LNT & Partners.

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 CASE STRATEGY FROM
ARBITRATOR’S VIEWPOINT

Dr. Net Le
SIAC / VIAC Arbitrator
LNT & Partners

English Vietnamese interpreting is available throughout the 1 program

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The importance of case strategy for international arbitration

The Claimant The Respondent

Wants to prepare the case thoroughly and move

ahead while making the presentation very simple

Must have its own story to convince the Tribunal

why it should prevail, as simply as possible
Needs to answer line by line of the Statement of
Claims, so that the dispute does not lose track
So does the Claimant in the Reply

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Other important issues
Each of the steps needs a strategy that matches the whole case strategy.
It is usually crystallized in the Procedural Order and the Terms of Reference.

1 Selection (or challenge) of the arbitrator(s) 6 Time management

2 Appointment of chairman 7 Disclosure of evidence

3 Mode of submission: pleading or memorial 8 Witnesses and Experts

4 Jurisdiction challenge 9 Hearing and cross-examination

5 Settlement or negotiation 10 Cost submission and allocation

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3

The case is as follow:

 The Government of Utopia borrowed money from an international cooperation fund from
Gov of Delta, so-called DICA (“Loan”) of US$500 Million.
 Utopia assigned the Loan to the Ministry of Finance, who allocate to the State Treasury, and
establish a Project Management Unit (PMU) to launch a bid for construction of an
expressway, using the state budget (“Project”). Star Construction from Delta won it and the
Engineer from Delta also won it. Both signed contracts in 2016.
 The construction contract followed FIDIC form 2010, red book (“Contract”). For payment,
under Clause 14, Contractor would send interim payment application (IPA) to the Engineer,
who then issue interim payment certificate (IPC) to the Employer, who then approved it and
send to State Treasury. The Contractor receives payment from the State Treasury who were
allocated money from DICA.

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The case is as follow:

 Then the construction is delayed by ABC reasons alleged by Star and DEF reasons alleged by
PMU. Meantime the Loan expired. It takes 6 months to sign extension for the Loan.
 Star takes legal action against PMU at SIAC, claiming for prolongation cost, variation, price
adjustment.
 PMU wants to counterclaim but there is no mechanism to seek the fund and bureaucracy
stops them from doing so. Meantime, they have problem finding fund to pay for solicitors,
because the Loan does not have money for it.

English Vietnamese interpreting is available throughout the program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Discuss the following points:

1. 2. 3. 4.
How to interview client When to say things and Pleading style or Should use witness or
and advise them to take not to say things? memorial style and why? not?
steps?

5. 6. 7. 8.
How turn their What if you don’t have How to prepare opening How to conduct cross
witness/expert to your money to do arbitration statement and closing examination?
advantage (because of strict statement?
government regulation)?

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 Anita Natalia
Senior Associate at Herbert Smith Freehills

Anita acts for clients in various industries in a broad range of commercial

disputes involving company law and shareholders’ disputes, joint venture disputes,
minority oppression actions, construction, and insolvency matters. She also has a broad
civil litigation experience in land law, reinsurance, securities, trusts and partnership
disputes. She also has an active arbitration practice.
Her portfolio of dispute resolution work involves a wide variety of commercial
and corporate disputes and litigation including domestic and international arbitrations.
Anita has worked closely with clients across Asia, China, Europe, Middle East and UK
in their cross-border disputes. She has appeared at all tiers of the Malaysian Courts.
Anita is a Fellow of the Chartered Institute of Arbitrators and the Malaysian Institute of
Arbitrators. She is also empaneled as an arbitrator with the Asian International
Arbitration Centre.

272
 CASE STRATEGY IN CONSTRUCTION ARBITRATION –
ARBITRATOR’S PERSPECTIVE
Pardeep Khosa
Partner at Morgan, Lewis & Bockius LLP

Pardeep Khosa is a partner at Morgan, Lewis & Bockius LLP and also a director
at Morgan Lewis Stamford LLC, a Singapore law corporation affiliated with Morgan,
Lewis & Bockius LLP.
Pardeep has a broad practice focusing on international arbitration, commercial
and civil litigation and corporate crime and investigations. Pardeep regularly appears
before the Singapore courts and arbitral tribunals in international arbitrations under
various institutional arbitration regimes, including the Singapore International
Arbitration Centre (SIAC), the International Chamber of Commerce (ICC), and the
London Court of International Arbitration (LCIA). He is also a member of the Chartered
Institute of Arbitrators.
Pardeep has acted for companies, high-net worth individuals, governments and
statutory boards in complex and multijurisdictional disputes and arbitrations across
various sectors, including energy, construction, engineering, and infrastructure. Pardeep
also handles corporate, shareholder and joint venture disputes, as well as disputes
involving contractual disputes and civil fraud.
Pardeep has received recognition for his disputes work in several legal
publications and directories including the Legal 500 and Who’s Who Legal. He was also
recently listed as a National Leader, Southeast Asia for Commercial Litigation by Who’s
Who Legal and Best Young Lawyer Under 40 by Asian Legal Business.

273
CASE STRATEGY IN
CONSTRUCTION Picture
Ảnh diễn giả
ARBITRATION –
ARBITRATOR’S PERSPECTIVE
PARDEEP SINGH KHOSA
MORGAN, LEWIS & BOCKIUS LLP

English Vietnamese interpreting is available throughout the 1 program

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KEY ISSUES

Part 1: The Central Issues in This Case

Part 2: The Presentation of the Parties’ Cases
Part 3: The Presentation of the Parties’ Evidence

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 Part 1: The Central Issues in this Case - What
was the cause of the Delay?

• Contractor seeking additional payment because of the delay, on the basis

of prolongation costs, variations and price adjustment
• Contractor’s case: employer’s actions have delayed the project
• Delay analysis: identifying root causes, allocation of risk and responsibility,
and identifying impact or consequence

English Vietnamese interpreting is available throughout the 3 program

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Part 2: The Presentation of the Parties’ Cases

• Pleadings vs Memorials
• Pleadings - Avoid parties preparing unnecessary evidence
• Memorials – Forces parties to properly evaluate strengths of case up front
• Preference depends on legal tradition of representatives and whether
claimant or respondent
• Parties must serve relevant documents with their statements of case and
should be directed to prepare a Scott Schedule

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 Part 3: The Presentation of the Parties’
Evidence
• Construction arbitration is expert-heavy
• Experts on relevant aspects of project, local law, quantum, engineering,
programming
• Suggested steps to narrow the issues in dispute
• Agreement between parties on facts, issues, documents
• Experts to identify issues on which they disagree
• Hot-tubbing

English Vietnamese interpreting is available throughout the 5 program

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Q&A
Thank you!

English Vietnamese interpreting is available throughout the 6 program

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 TO START OR NOT TO START:
WHAT IS THE RIGHT STRATEGY FOR CLAIMANT
Seung Min Lee
Partner at Peter & Kim

SeungMin Lee is a partner at Peter & Kim (Singapore office). Ms Lee has
represented and provided advocacy for major Korean and international clients in
arbitrations under a wide range of institutional rules. She is dual-qualified as a Korean
lawyer, and a solicitor in England and Wales. She has previously served as the South
Korean national representative of the IBA young lawyers’ committee, and has served as
regional representative for Korea to the LCIA young international arbitration group.
Ms Lee was a registered foreign lawyer in Singapore in 2016, and counsel to the
LCIA in 2010. A graduate of Seoul National University and member of the Korean bar,
Ms Lee completed an LLM at the National University of Singapore in 2016.
Ms Lee was selected as a ranked lawyer in the jurisdiction of Korea from 2016
to 2021 by Chambers and Partners and was “recognized as a Future leader under 45-
Partner in Arbitration” by Who’s Who Legal from 2018 to 2021.

277
 To Start or Not to Start:
What is the right strategy for Claimant

SeungMin Lee

Peter & Kim (Singapore)

English Vietnamese interpreting is available throughout the 1 program

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The Claim? The questions you need to ask.

• Failing to follow the contract.

- What is the nature of the claim event – is the claim being brought for payment regarding work done, for variations, for damages for breach of
contract or for an extension of time and prolongation costs?

- Is the claim event within the risks to be borne by the other party under the applicable contract?

- Regarding the prospects of the claim, what are the (1) pessimistic, (2) optimistic and (3) probable outcomes?

• Over-optimistic schedules and unrealistically low profit margins at the outset.

• Failing to submit the requisite notice.

• Asserting poorly substantiated claims.

• Implementing variations before time and costs are agreed.

• Failing to mitigate delays and disruption.

- Can potential negative consequences of bringing the claim be mitigated by other measures?

English Vietnamese interpreting is available throughout the 2 program

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 How to move swiftly

• How to deal with lengthy multi-tiered pre-dispute protocol

• Using expedited procedures provided by arbitral institutions

• Using Interim relief to maintain status quo pending final resolution of the dispute

English Vietnamese interpreting is available throughout the 3 program

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Cost: Would the Claimant be able to withstand a

sustained war of attrition?
• Cashflow challenges in the construction industry and thin profit margins.

• Large quantum of construction claims will increase costs.

• Practical questions to ask:

- What is the likely amount that of damages or losses that can be recovered? To what extent can the claimed amount actually
be recovered? Are the respondents in fact able to pay it?

- Does the amount of the claim justify the effort and costs of bringing the claim?

- Is the cost of arbitration greater than the claimed amount? If so, then it may be senseless pursuing arbitration unless the
claim is a matter of principle.

English Vietnamese interpreting is available throughout the 4 program

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Strategic use of Fact Witnesses, Experts and
Technology
• Fact witness evidence
- Which facts can only be established by witness evidence? As witness evidence is generally less probative than documentary evidence, how
crucial is this evidence?

- Who can serve as a witness? How many of the witnesses are likely to be available at the time of the arbitration hearing?

- Who will the other party likely call as their witnesses? Will their witnesses be credible?

• Expert evidence
- Which issues are highly technical and should be established through expert evidence?

- Who are the best candidates available to serve as an expert? Will there be any conflict of interest with their appearance as experts?

• Technology

English Vietnamese interpreting is available throughout the 5 program

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Partner, Singapore

• Bar Admissions: South Korea (2007),

England & Wales (2018)
• Shin & Kim LLC (2007–2020)
• Oon & Bazul LLP (Singapore, 2016)
• Counsel, London Court of International
Arbitration (2010)
• Partner, Peter & Kim (2020–present)
• Panel of arbitrators (KCAB)
• Ranked Lawyer, Chambers Asia Pacific
(2016–2022)
• Future Leader, Who’s Who Legal (2018–2022)

English Vietnamese interpreting is available throughout the 6 program

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280
 ROADMAP TO VICTORY FOR PMU SOME
PRACTICAL TIPS
K. Luan Tran
Partner at King & Spalding LLP

K. Luan Tran is partner in King & Spalding’s international arbitration practice,

and splits his time between the firm’s Los Angeles and Singapore offices. He has 25
years of experience in international arbitration. He is among the few first-chair trial and
arbitration lawyers with active U.S. and Southeast Asia practices. He has handled
complex disputes relating to construction, energy, real estate, and other investment
projects before the major arbitral institutions. A frequent speaker and author on
Southeast Asia, particularly his native Vietnam, he was recently recognized as a “Legal
Visionary” by the Los Angeles Times and “Trailblazer” by the Recorder for his work in
the region. Luan was a member of the Board of Directors and is a current member of the
Council of the AAA/ICDR. He is also currently on the ICC’s U.S. Arbitrator
Nominations Committee. He is a graduate of Harvard Law School..

281
 Roadmap to Victory
for PMU
Some Practical Tips

K. Luan Tran
Xiaomao Min English Vietnamese interpreting is available throughout the 1 program
King & Spalding LLP Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Build Your Case Around the Evidence, Not

the Reverse
• The case should be built around the existing evidence, not on evidence counsel hopes
to obtain during the course of the arbitration.

• Many counsel are forced to change their case narrative or drop some of the claims
during the arbitration—and lose credibility—when they realized that the evidence that
came out did not support the original claims.

• Therefore, it is crucial that a party’s case is thought through carefully from the
beginning of the arbitration.

English Vietnamese interpreting is available throughout the 2 program

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The First Side that Figures Out What Matters
In the Case Usually Wins
• You are at a huge advantage when you realize, before the other side does, what will
ultimately matter in the case: what are the key issues/evidence that the arbitrators will
likely focus on to issue their award.

• To do so, you need to do some hard thinking and analysis early on: getting deep into
the documentary evidence, researching applicable laws, interviewing key project
employees and third-party witnesses, retaining expert consultants (delay experts…) to
get their advice and assistance in building the case.

• Consider early mock arbitration hearing to test themes, arguments and/or documents.

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

The Importance of Documentation

In Construction Arbitration

• Construction disputes are document-intensive. To prove claims or establish defenses regarding

inefficiencies, costs, and delays to the project, parties must rely on documents created and
maintained during the construction.

• In this case, the contractor seeking damages for a compensable delay to the project schedule
would have to establish: (1) the delay occurred; (2) PMU caused the delay; (3) the contractor was
not responsible for any concurrent delay; (4) the delay caused damages to the contractor; and (5)
damages amount. Without contemporaneous documentation (project schedules tracing the
delay events or correspondence noting the delay and anticipating the resulting potential
damages), the contractor is in the difficult position of relying on witness testimony to establish the
facts and expert testimony to re-create the project history.

English Vietnamese interpreting is available throughout the 4 program

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The Importance of Documentation
In Construction Arbitration (cont’d)
• Contemporaneous documentation is also important in refuting waiver, estoppel, or
release arguments (that PMU did not provide proper notice of its complaints or PMU
accepted changed terms or work defects).

• Good documentation also helps to enhance the credibility of experts witnesses and
their expert reports.

• Lack of normal project documentation may subject the offending party to evidentiary
sanctions including adverse inference.

• Hire outside vendor to help with document management.

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Preserve The “Paper Trail”

• PMU should circulate a litigation hold notification to its employees, instructing
them to retain and not to destroy existing documents, including both electronically
stored information and hardcopy documents.

- This is to ensure that PMU and its legal counsel will have access to all the documents and
information needed to best pursue its defenses and counterclaims (e.g., change orders, scope
amendments, project schedules, weekly/monthly reports, drawings and plans, emails
correspondence, etc.).

- This is also critical to document production in the arbitration, where PMU may have to disclose
the relevant documents to Star.

English Vietnamese interpreting is available throughout the 6 program

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Take Care When Creating New Documents
• PMU should circulate documents and communications guidelines to its employees, as
well as the relevant State agencies, on creating new internal and external documents.

- Draft internal communications (including emails and meeting notes internal to PMU) with care on
the assumption that they will be disclosed to Star during document production.

- Emails and other documents addressed to Star related to the dispute should be vetted by the legal
team/external counsel before they are sent.

- Don’t have conversations with Star regarding the dispute and the arbitration, except in a formal
settlement situation where the discussion is conducted on a “without prejudice” basis.

English Vietnamese interpreting is available throughout the 7 program

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No Money? No Problem

• PMU should consider litigation funding.

• PMU could also try to reach a contingency fee arrangement with external counsel.

English Vietnamese interpreting is available throughout the 8 program

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Retaining the Right Experts
• Experts cannot win your case alone, but they can sink it! So need extensive due diligence (be ware of
those who have reputation of acting as advocates).

• Cases should not be driven by experts. Counsel need to manage them, including spending many hours
with the experts to figure out how best to articulate and transform the experts’ points into written and
oral form.

• Counsel is responsible for the analysis and development of client’s case, including undertaking the
relevant factual and legal investigations that form the basis and scope of expert analysis.

• In this delay case, the experts need to look into issues such as contract and document analysis, schedule
review, delay and disruption identification and qualification, causation analysis, apportionment, critical
path analysis.

English Vietnamese interpreting is available throughout the 9 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Early Memorials Are Preferred

• Counsel should adopt the continental practice of memorial-stye pleading in which the
parties exchange as early as possible memorials that are accompanied by all the
evidence replied upon by the parties (as opposed to exchanging pleadings prior to
producing the evidence).

• Given the complexity of construction arbitrations, this will enable the parties: (1) to know
as early as possible the other side’s case so they can prepare accordingly; and (2) to
define precisely the nature and scope of the issues between the parties.

English Vietnamese interpreting is available throughout the 10 program

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General Guidance on Opening Statements

• Opening is a Roadmap: Make sure you lay out claims, elements, and what the evidence
shows.

• Make sure that evidence slides are marked with exhibit references.

• It is a chance to reiterate and highlight themes, and also difficult issues (legally/factually).

• Are there vulnerabilities of witnesses on the other side? -- Highlight those vulnerabilities.

• Address our side’s vulnerabilities upfront.

English Vietnamese interpreting is available throughout the 11 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Ten Commandments of Cross Examination

• Be brief.
• Use plain words.
• Ask only leading questions.
• Be prepared.
• Listen.
• Don't get into a quarrel.
• Avoid repetition.
• Avoid allowing witness explanations.
• Limit questionings.
• Save main points for closing.

English Vietnamese interpreting is available throughout the 12 program

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General Guidance on Closing Statements

• First, Ask Yourself: Should you do closings? Do you have enough time? Can your closing come a
few weeks after the hearing? (Often Post Hearing Briefs are most useful)

• If there are closings right after presentation of evidence, bring in a supplemental team to help
create the closing slides long before you conclude your hearing so your core team is not
distracted

• These other lawyers should be updating your proof outline every day, reviewing the rough
transcripts, etc. and creating slides so you can come in and show that your case is even
stronger now (via crosses, new testimony, etc.)

English Vietnamese interpreting is available throughout the 13 program

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Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

English Vietnamese interpreting is available throughout the 14 program

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288
PHIÊN D2: ĐIỀU TIẾT THỜI GIAN VÀ CHI PHÍ TRONG
TRỌNG TÀI XÂY DỰNG

PANEL D2: CONTROLLING TIME AND COSTS IN

CONSTRUCTION ARBITRATION

289
 Moderator Paul Sandosham
Partner, Clifford Chance Asia

Paul is a partner in the Litigation and Dispute Resolution practice of Clifford

Chance and heads the Energy, Infrastructure and Resources (Disputes) practice for
Southeast Asia.
Paul acts as counsel in court and international arbitration proceedings for various
parties (under ICC, SIAC, DIAC, LCIA, ADCCAC, UNCITRAL, ICSID Rules) in
disputes arising out of large-scale construction, infrastructure and engineering projects
across numerous jurisdictions, including Vietnam. He also has extensive experience in
international trade and commodities disputes.
Paul is admitted in England & Wales and Singapore. He is registered in the Dubai
International Financial Centre Courts’ register of practitioners. He is qualified as a
Chartered Arbitrator and is a Fellow of both the Chartered Institute of Arbitrators and
Singapore Institute of Arbitrators. Paul is an accredited mediator with the Centre for
Effective Dispute Resolution in London.
Paul is on the panel of arbitrators of numerous arbitral institutions including
SIAC, BANI, AIAC, DIAC, HKIAC, PIAC, BCDR and CIArb (London). He sits as sole
arbitrator and tribunal chairman in international arbitrations relating to various types of
cross-border disputes.
Paul is a member of the ICC Singapore National Committee Nominations
Commission and a member of the core committee of the ICC Singapore Arbitration
Group.

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 MEASURES INTRODUCED BY ICC TO CONTROL TIME AND
COSTS FOR PARTIES IN ARBITRATIONS

Tejus Chauhan
Director, South Asia, ICC Arbitration & ADR,
ICC International Court of Arbitration

As the Regional Director for South Asia based out of Singapore, Tejus focuses
on assisting companies, counsels, and investors the region understand how they can
resolve commercial disputes by raising their awareness about ICC’s Dispute Resolution
Services.
In his role, Tejus advises on arbitration proceeding protocol, especially ICC
Arbitration, organizing capacity building and informative events, promoting ICC’s
dispute resolution services, and connecting with regional players to forge relationships
that connect ICC with users and businesses. Tejus is also an avid promoter of
opportunities for young practitioners and leads ICC’s Young Arbitration Forum (YAF)
in South Asia.
Tejus earned his law degree in India. Upon graduation, Tejus worked as an
associate with a law firm in the disputes and TMT practice. Prior to joining ICC in
Singapore, Tejus has also worked as the Deputy Director – Arbitration for ICC in India
and with the forensic and dispute advisory services at a Big Four audit firm.

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 Measures introduced by ICC to
control time and costs for parties
in arbitrations
Tejus Chauhan
Director, Arbitration & ADR, South Asia
ICC Dispute Resolution Services

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

General Obligation and Key Principles

Award and
timeliness

Cost
transparency
and
predictability Joint obligation by the
Arbitral Tribunal and
the Parties for time
and cost efficient
conduct of
proceedings
(cf. Rule 22(1) of ICC
Arbitration Rules 2021)

English Vietnamese interpreting is available throughout the 2 program

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Expedited Procedure Provision (EPP)
Date of 1 March 2017
Arbitration
Agreement 1 Jan 2021

US$ 2 Million Amount

in
US$ 3 Million Dispute

- Standard Clauses
- During the arbitration
Opt-In
- Total or Partial
- Subject to Art. 30(1)

- Standard clause
- During the Opt-
arbitration
Out
- Express, not
Implicit

- Upon request
Court’s
discretion - On its own
motion
English Vietnamese interpreting is available throughout the 3 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Comparison between regular arbitration and EPP

Regular arbitration EPP

Terms of No Terms of
Reference Reference

No deadline for CMC within 15 days

CMC from Saisine

Award within 6 Award within 6

months from ToR months from CMC

Party autonomy More discretion of

Arbitral Tribunal

Regular Fee scale Reduced Fee scale

English Vietnamese interpreting is available throughout the 4 program

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293
 Applicable timelines for draft awards
Arbitral Tribunal ICC Court
• Generally, awards must be rendered within six • In cases involving dissenting opinion or a state
months from the establishment of the Terms entity, awards will be scrutinised within five or
of Reference or within any other time limit six weeks of receipt by the Secretariat.
fixed by the ICC Court.
• In all other cases, draft award will be
• Draft awards are expected within two months scrutinised within three to four weeks of
from last substantive submissions or hearing, receipt by the Secretariat.
in case of a sole arbitrator.
• If the Expedited Procedure Provisions apply,
• Draft awards are expected within three any draft award submitted to the Court will be
months from last substantive submissions or scrutinised as soon as possible, no later than
hearing, in case of a three-member arbitral two to three weeks.
tribunal.

English Vietnamese interpreting is available throughout the 5 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Consequences for Arbitrators

• An arbitrator shall also be replaced on the Court’s
Article 15(2) of own initiative when it decides that the arbitrator is
the ICC prevented de jure or de facto from fulfilling the
Arbitration arbitrator’s functions, or that the arbitrator is not
Rules 2021 fulfilling those functions in accordance with the
Rules or within the prescribed time limits.
• In setting the arbitrator’s fees, the Court shall take
into consideration the diligence and efficiency of
the arbitrator, the time spent, the rapidity of the
Article 2(2)
proceedings, the complexity of the dispute and
App.III of the
the timeliness of the submission of the draft
ICC Arbitration
award, so as to arrive at a figure within the limits
Rules 2021
specified or, in exceptional circumstances (Article
38(2) of the Rules), at a figure higher or lower than
those limits.
Reduction (Para
155 of the ICC
• Arbitral Tribunal’s fees typically reduced between
Note to Parties
5%-20%, depending on unjustified delay
and Arbitral
Tribunals)
English Vietnamese interpreting is available throughout the 6 program
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 Consequences for Parties
• In making decisions as to
costs, the arbitral tribunal
may take into account
such circumstances as it
Article
38(5) of considers relevant,
the ICC including the extent to
Arbitration
which each party has
Rules 2021
conducted the
arbitration in an
expeditious and cost-
effective manner.
English Vietnamese interpreting is available throughout the 7 program
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Accountability of ICC
• If the scrutiny process is
delayed, other than by
circumstances that are
Par. 170 of ICC beyond the Court’s
Note to Parties
and Arbitral control, the Court’s
Tribunals administrative expenses
will be reduced by up to
20%, depending on the
length of delay.

English Vietnamese interpreting is available throughout the 8 program

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Cost predictability and transparency
– Tribunal fees and institutional fee calculated based on the amount in dispute.
– Parties can predict costs in advance via ICC cost calculator.
– ICC Court oversees financial aspect of each case. Separate fee arrangements are not allowed.

100

50

0
Start Arbitration /
Litigation Award / Decision
Enforcement /
82% Attorney's Fees and Other Legal Costs Setting Aside
Appeals against
16% Arbitrators' Fees enforcement /
2% Arbitral Institution fees setting aside

English Vietnamese interpreting is available throughout the 9 program

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Timeliness of scrutiny of draft final awards by ICC

(2006 -2021)
2091 draft final awards 6 cases
submitted to scrutiny (2016-
2021)

Minor delay in scrutiny in 6

cases (0.003% cases)

2085 cases No delay in EPP

No delay slight delay

English Vietnamese interpreting is available throughout the 10 program

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296
 Delayed draft awards submitted by arbitral tribunals (2016 –
2021) *Excluding EPP cases
891 ‘late’ draft final awards out of 2091

In 2021, 153 late draft final awards out of

374

41% (363 cases)

59% (528 cases)

Fees Reduced No reduction

English Vietnamese interpreting is available throughout the 11 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Delayed draft awards (2018 – 2021) for EPP cases

195 FA in total 27% (12 cases)

87 FA in 2021

Delay beyond one month in 45 cases:

- 32 cases justified delay

- 12 cases reduction of fees
- 1 case FA not approved, one-month for
SA’s commentary, no reduction of fees

73% (33 cases)

Fees Reduced No reduction Expedited scrutiny = average 14 days

English Vietnamese interpreting is available throughout the 12 program

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297
 References

English Vietnamese interpreting is available throughout the 13 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Contact Us
Tejus Chauhan
Director, Arbitration and ADR, South Asia, ICC Dispute Resolution Services
ICC Dispute Resolution Services
28 Maxwell Road #02-02 Maxwell Chambers Suites
Singapore 069120
Email: [email protected]
General office email: [email protected]
Tel: +65 6983 5564

More information on www.iccarbitration.org

 Events, trainings & online learning
 ICC Young Arbitration and ADR Forum (ICC YAAF)
 Careers & internships

ICC Digital Library https://jusmundi.com/en/icc-dispute-resolution-library

Material available upon both free access & subscription

English Vietnamese interpreting is available throughout the 14 program

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298
 COST – SAVING STEPS:
A) BEFORE ANY DISPUTE IS TRIGGERED;
B) POST-DISPUTE BUT BEFORE ARBITRATION IS COMMENCED

Earl Rivera-Dolera
Head of International Arbitration, Frasers Law Company

Earl Rivera – Dolera has acted as arbitrator, counsel and advocate, international
tribunal law clerk (to prominent international arbitrators from major arbitration
jurisdictions), and case counsel, in her more than 16 years of experience practising in
the area of international commercial arbitration and investor-state treaty arbitration,
court litigation and other areas of dispute resolution such as mediation, with particular
emphasis on high-value and complex disputes arising from M&A transactions, cross-
border sale of goods, construction and engineering (EPCs and multi-party and multi-
contract transactions), licensing and distributorship agreements in a wide spectrum of
sectors including oil and gas, renewable energy, commodities.
She has been based in Singapore prior to her relocation to Vietnam and has been
involved in arbitration matters seated in the Asia-Pacific, Europe, the US, Australia, and
Africa.
Earl has been appointed as arbitrator with seats in Japan, India, South Korea,
Singapore, Indonesia, the Philippines, and Hong Kong. She has extensive experience in
more than 170 international arbitration matters in various capacities.
Earl is a Fellow of the Chartered Institute of Arbitrators, a Fellow of the
Singapore Institute of Arbitrators, a Salzburg-Cutler Fellow for International Law and
Jean Monnet Fellow for European Union Law, the latter two from Stanford University,
USA.
Experience
Earl joined Frasers in 2021 as Head of International Arbitration. Since then, Earl
has handled large and complex transactions and sophisticated legal issues in advising
and representing clients in their cross-border disputes. Prior to joining Frasers, Earl
worked for a leading chamber of international arbitration practitioners based in
Singapore for 9 years.
She is also an active advocate in the promotion of international arbitration,
intellectual property enforcement, data privacy and protection and speaks on these areas
in various events and conferences in Vietnam, Singapore, Japan, Cambodia, Thailand,
India, Indonesia, Philippines, California (USA), Taiwan, Malaysia among others.

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300
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FRASERS
LAW C O M P A N Y

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• 
•
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302
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303
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10

304
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•

 •
•

12

305
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13

14

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 TIME & COSTS SAVING IN CONSTRUCTION ARBITRATION IN
VIETNAM: CLAIMANT PERSPECTIVES

Nguyen Do
Partner at YKVN

Nguyen Do dedicates his practice to construction and international arbitration.

He regularly advises on contract review, drafting and negotiation for infrastructure and
commercial projects across Vietnam. Clients also seek his representation in complex
construction disputes. In recent years, he was invited by the Vietnam Engineering
Consultant Association (VECAS) to be the Vietnamese co-editor-in-chief of the FIDIC
Second Edition suite. The suite comprises of three principal FIDIC Conditions of
Contract (Red, Yellow and Silver books).
Nguyen is also a key member of YKVN’s International Arbitration practice. He
has been involved in numerous high-profile high-value international arbitration and
dispute resolution matters in energy, infrastructure, debt restructuring, shareholder
disputes, investment disputes, and professional malpractice & negligence. His articles
on Vietnam-related arbitration are published in major arbitration publications including
GAR, the International Arbitration Review and the International Comparative Legal
Guide to International Arbitration.
Nguyen is qualified in both Washington State and Vietnam. Before joining
YKVN, Nguyen worked at the Washington State Court of Appeals and private practices
in the U.S.

308
Time & costs saving in
construction arbitration in
Vietnam: Claimant perspectives

Do Khoi Nguyen, YKVN

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Talking points
1. General tools/tips/techniques for a Claimant to save time/costs
2. Protection of the final award in complex/high-value disputes: Two practical
tips for a Claimant to consider

English Vietnamese interpreting is available throughout the 2 program

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309
 General tools/tips/techniques
• Commencement stage:
• Expedited Procedure?
• Simple NOA/RFA or full SOC?
• Filing requirements (number of copies, service of process, filing fee, advance of arbitration costs)
• Tribunal constitution
• TOR, PO1 and Procedural Timetable
• Expert evidence
• Hearing

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Vietnam complex construction disputes

• Claimant will likely be the foreign contractor; the Vietnamese owner will
likely refuse to pay and/or call on the performance bond but will not likely
initiate arbitration
• In major projects using public funds, state-own owners will likely require
Vietnamese law as the governing law of the FIDIC contract with Vietnamese
seated arbitration (ICC/VIAC)

English Vietnamese interpreting is available throughout the 4 program

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310
 Drafting of PO1 – IBA Rules on Evidence
• There are gaps between the IBA Rules on taking of evidence and
Vietnamese arbitration law
• Claimant should take the initiative to prepare a detailed PO1 to help the
Tribunal navigating through the gaps
• Example: HuaDong vs VSH case – Decision from Hanoi People’s Court
setting aside VIAC award because the Tribunal relied on the IBA Rules to
disregard the Respondent’s evidence
English Vietnamese interpreting is available throughout the 5 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

ICC seated in Vietnam: foreign arbitral award?

• Claimant prevails in an ICC seated arbitration in Vietnam, Respondent applies to a

Vietnamese Court to set aside the award under Art. 68 of the Vietnamese Law on
Commercial Arbitration (LCA)
• What should the Claimant do?
• The Claimant should argue that the award of an ICC arbitration seated in Vietnam is a
“foreign arbitral award” under the LCA

English Vietnamese interpreting is available throughout the 6 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

311
 ICC seated in Vietnam: foreign arbitral award?

• Why? Because under Art. 71 of the LCA, the Court’s decision to set aside is final and non-appealable.
• On the other hand, if the Respondent applies to not recognize a foreign arbitral award under Art. 459
of the Civil Procedure Code, the Court’s decision is not final and subject to appeal.
• Arts. 3.11 & 3.12 of the LCA:
Foreign arbitration is an arbitration formed under a foreign law on arbitration as agreed by the parties to settle a
dispute outside or within the territory of Vietnam.
Foreign arbitral award is an award issued by a foreign arbitration outside or within the territory of Vietnam to
resolve the dispute, as agreed by the parties.

English Vietnamese interpreting is available throughout the 7 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Q&A
Xin trân trọng cám ơn Quý vị đã chú ý lắng nghe!
Thank you!

English Vietnamese interpreting is available throughout the 8 program

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 TIME & COSTS SAVING IN CONSTRUCTION ARBITRATION
IN VIETNAM: RESPONDENT PERSPECTIVES

Logan Leung
Deputy Managing Partner at Rajan & Tann LCT Lawyers

Logan’s field of practice at Rajah & Tann LCT Lawyers is multidisciplinary, with
his experience covering contentious and non-contentious matters. He is regarded for his
familiarity with Vietnam’s regulatory environment. Recognised by The Legal 500 Asia
Pacific (2020) as a ‘Next Generation Partner’ for Corporate and M&A, Arbitration,
Logan has been praised of being “responsive, intelligent, well-spoken, prompt,
pragmatic, and extremely knowledgeable about the issues in the cases ” and “providing
workable solutions” across a number of key practice areas.
In the firm’s Dispute Resolution practice, Logan specialises in international
arbitration. He has advised or acted as counsel in disputes adjudicated under the
arbitration rules of the ICC, SIAC, HKIAC, VIAC, CAA and the Swiss Chambers’
Arbitration Institution.
Logan also helms the firm’s Shipping/Maritime practice. His experience has seen
him act for or advise in both wet and dry shipping matters for ship owners/managers,
commodities traders, P&I clubs, insurers, and logistics companies.
As a part of Rajah & Tann LCT Lawyers’ broader Corporate and M&A practice,
Logan has acted for SMEs and MNCs in corporate transactions and greenfield projects
across multiple industry sectors.
Logan’s domain expertise lies in the technology sphere, and he is active in the
firm’s Technology, Media and Telecommunications (TMT) practice. His clients have
ranged from start-ups to global technology giants, where he has advised on matters
covering cybersecurity, e-commerce, IP, gaming, net neutrality, data protection and
privacy, entries of disruptive technologies, and policy matters.

313
 Time & costs saving in construction
arbitration in Vietnam: Respondent
perspectives
Logan Leung, Rajah & Tann LCT Lawyers

English Vietnamese interpreting is available throughout the 1 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Response to Request for Arbitration

• How comprehensive should it be?

• Institutional rules can contain short timescales by which a respondent is to

respond to the request for arbitration

• 30 days: ICC Rules, VIAC Rules, HKIAC Rules, UNCITRAL Rules (ad hoc)
• 14 days: SIAC Rules

• Can cost efficiencies be achieved from a shorter response?

• Pursuing extensions of time?

English Vietnamese interpreting is available throughout the 2 program
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314
 Early Dismissal
• Dismissal of claims at the outset without considering them in detail – often on manifest lack of merits.

• SIAC Rules – Rule 28.1 and Rule 29:

• Rule 28.1: Objection as to the existence or validity of the arbitration agreement or to the competence of SIAC to administer an arbitration. Before
constitution of the tribunal, Registrar to determine if the objection should be referred to the Court of Arbitration of SIAC. The Court will decide if it
is prima facie satisfied that the arbitration shall proceed. If not satisfied, arbitration will be terminated.

• Rule 29: Application for early dismissal where a claim (or defence) is manifestly without legal merit or manifestly outside the jurisdiction of the
tribunal. If application is allowed, tribunal to give order or award within 60 days of application (unless extended in exceptional circumstances)

• ICC Rules – Less prescriptive but subsumed into the tribunal's case management powers under Article 22.

• ICC Practice Note (Expeditious Determination of Manifestly Unmeritorious Claims or Defences): If application is accepted, the "arbitral tribunal
shall decide the application as promptly as possible, consistent with the nature of the application, and may state the reasons for its decision in as
concise a fashion as possible".

English Vietnamese interpreting is available throughout the 3 program

Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Preliminary Issues
• To decide (at the early stage of an arbitration) an issue that would dispose
of the arbitration or streamline the proceedings before the determination
of other issues. For example, matters of jurisdiction or other relevant
matters of law
• How about matters of fact?

• Bifurcation (or even trifurcation) of proceedings

• Whether to separate preliminary issues from other matters to be determined
English Vietnamese interpreting is available throughout the 4 program
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 Other Case Management Matters
• Document production / discovery

• Witness statements

• Experts

• Hearings
English Vietnamese interpreting is available throughout the 5 program
Tất cả bài trình bày đều có dịch cabin sang tiếng Việt

Ending the war

• Arbitration can be expensive and time-consuming

• Settlement is always open to the parties at any time during

the arbitral proceedings

• Arb-Med-Arb

English Vietnamese interpreting is available throughout the 6 program

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316