A practical guide to arbitrating a construction or infrastructure dispute in Asia

Arbitrating a construction or infrastructure dispute in Asia turns on one question before all others: where will the award be enforced, and does the seat you choose give you a route there? Hong Kong, as a common-law hub sitting at the boundary between Mainland Chinese courts and the international enforcement network, offers that route more reliably than most alternatives – provided the arbitration agreement and the procedural sequence are structured to use it. The Arbitration Ordinance (Cap. 609), modelled on the UNCITRAL Model Law, governs the process; the asset endgame governs the strategy.

This guide sets out the practical sequence for counsel and in-house teams handling a construction or infrastructure dispute in Asia – from reading the contract to registering the award.

What decision does the reader face, and what are the options on the table?

Every construction dispute in the Asia-Pacific region begins, functionally, with the same question: which dispute-resolution route gives you the best chance of collecting, not merely winning? That question is answered by the contract, the counterparty's asset profile, and the jurisdictions that sit between you and those assets.

The principal options are institutional arbitration, ad hoc arbitration, and litigation before a national court. In the Asian construction and infrastructure context, institutional arbitration is almost universally preferred by international contractors, lenders, and project-finance sponsors. It produces a final, binding award that travels under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the multilateral treaty under which contracting states commit to recognise and enforce foreign arbitral awards) across more than 170 states. For assets in Mainland China, the route runs instead through the bilateral Mainland–Hong Kong arbitral-award arrangements – a separate mechanism, but one that Hong Kong-seated arbitrations are positioned to use.

The leading institutional choices for Asia-seated construction disputes include the HKIAC (the Hong Kong International Arbitration Centre), the SIAC (the Singapore International Arbitration Centre), and the ICC (the International Chamber of Commerce). Each has different fee structures, procedural architecture, and geographic recognition. The choice of institution matters; so does the choice of seat, which governs the supervisory courts, the availability of interim relief, and the governing procedural law.

Hong Kong as seat offers a specific combination: common-law courts with a track record of minimal intervention in arbitral proceedings, interim-measures access to Mainland courts under the arrangement in force since 1 October 2019, and registration of Mainland judgments and awards under the regime in force since 29 January 2024. That combination does not exist at any other seat.

Litigation before a national court – whether in the Mainland, Southeast Asia, or South Asia – is usually inferior for cross-border disputes. Judgments travel less freely than awards. Enforcement against assets in a different state requires treaty coverage or a receptive local-law mechanism, neither of which is guaranteed.

For a broader view of the disputes and arbitration practice at Lockhart & Yip, see our Disputes & Arbitration practice page.

How do you read the arbitration clause before you commit to a seat?

The arbitration clause is the gateway document. Its content either opens or forecloses the strategic options described above – and in construction contracts, it is frequently drafted without attention to the enforcement endgame.

The first gate is validity. An arbitration agreement must satisfy formal requirements under the law governing the agreement and under the seat's domestic arbitration statute. Under the Arbitration Ordinance (Cap. 609), the agreement must be in writing; it need not be a separately executed document, and a reference in the contract to a standard form containing an arbitration clause is generally sufficient. Parties operating in the Mainland should verify this against the applicable PRC requirements as well – the two systems do not always align.

The second gate is scope. Construction contracts generate multiple categories of claim: variations, delay and disruption, final-account disputes, defects, performance-bond calls, and force-majeure events. Not every category is automatically within the clause. Narrow drafting – "disputes arising under this clause" rather than "disputes arising out of or in connection with this contract" – can exclude substantial heads of claim. Counsel reviewing an existing clause must map every anticipated claim against the clause's scope before proceeding.

The third gate is the multi-tier escalation requirement. Most infrastructure contracts – FIDIC (the Fédération Internationale des Ingénieurs-Conseils, the international standard-setting body for engineering contracts) based or otherwise – require engineer determination, followed by a dispute adjudication board or dispute board decision, followed by a notice of dissatisfaction, before arbitration can be commenced. Failure to complete any tier is a jurisdictional objection that the respondent will raise. The procedural sequence is a ladder; you cannot skip rungs.

What does this mean in practice? An Asian infrastructure group came to our desk in early 2025 with an award-enforcement problem that traced back to a missed notice of dissatisfaction under a FIDIC-based contract. The arbitral tribunal had proceeded; the award had been issued. But the enforcement court – in a Southeast Asian jurisdiction – accepted the respondent's jurisdictional objection and declined registration. The clause had not been satisfied in sequence. Recovery required a fresh arbitration, with the procedural steps completed in order. The loss of time was material.

What is the correct sequence once arbitration is formally commenced?

The procedural sequence for a Hong Kong-seated construction arbitration under the HKIAC Administered Arbitration Rules (in their current form, effective 1 June 2024) follows a defined path. Understanding each step – and the strategic decision at each gate – is the practitioner's core task.

Step 1: Notice of arbitration. The claimant files a Notice of Arbitration with the HKIAC. The notice must identify the parties, the arbitration agreement, the relief sought, and any proposed method of constituting the tribunal. From this point, the arbitration is formally commenced. The respondent has a defined period to file its Response to the Notice of Arbitration.

Step 2: Constitution of the tribunal. In construction and infrastructure disputes, sole arbitrators are occasionally used for smaller matters; three-arbitrator tribunals are the norm for substantial claims. The parties may agree on the constitution method; absent agreement, the HKIAC has appointment authority. Tribunal selection in construction matters requires attention to technical expertise – an arbitrator with engineering, quantity-surveying, or project-finance experience will manage the evidential issues more efficiently.

Step 3: Preliminary procedural conference. The tribunal holds a preliminary conference to agree the procedural timetable – pleadings, document production, expert reports, and the hearing schedule. Construction disputes generate large volumes of contemporaneous records: site diaries, RFIs (requests for information), variation orders, and programme updates. Agreeing a document-production protocol at this stage avoids later satellite disputes about scope.

Step 4: Pleadings and document production. The claimant's statement of claim and the respondent's statement of defence (and, if applicable, counterclaim) define the issues. In delay and disruption claims, the pleadings are frequently supported by a programme analysis and a quantum expert's report. Document production in a Hong Kong-seated HKIAC arbitration is typically conducted under the IBA Rules on the Taking of Evidence in International Arbitration – a practitioner-standard tool that manages discovery without the wide-ranging disclosure obligations of common-law litigation.

Step 5: Expert evidence. Construction and infrastructure arbitrations almost always require expert witnesses in at least two disciplines: technical delay/disruption and quantum. Parties should consider whether the tribunal would benefit from concurrent expert sessions (hot-tubbing) – a procedure that allows opposing experts to be questioned together, narrowing the real points of disagreement before the hearing.

Step 6: The merits hearing. The hearing is where the factual witnesses, the experts, and counsel's submissions converge. In a substantial infrastructure dispute, the hearing may run for several days or weeks. Under the HKIAC Rules, the tribunal should close proceedings no later than 45 days after the last directed substantive submissions, and the award should follow within 3 months of closure.

Step 7: The award and post-award steps. The award is the enforcement instrument. It must be final and binding on the merits. Parties who do not act promptly after the award is issued risk enforcement complications – particularly if the respondent begins to move or dissipate assets. The post-award period is a strategic window, not an administrative tail.

For detailed coverage of the setting-aside risk that attaches to a Hong Kong-seated award, see our guide at setting aside a Hong Kong arbitral award.

How do interim measures protect your position between commencement and award?

Interim relief is the mechanism that prevents the award from being a paper victory. In construction disputes – where the respondent may be a project company, a special-purpose vehicle, or a state-linked entity with assets in multiple jurisdictions – obtaining early protective orders can determine whether enforcement is possible at all.

Under the HKIAC Administered Arbitration Rules, a party may apply to the HKIAC for an emergency arbitrator before the full tribunal is constituted. Emergency relief proceedings are designed to be completed ordinarily within 14 days of file transmission to the emergency arbitrator. The emergency arbitrator can grant interim measures – including orders preserving assets or maintaining the status quo – that the party can then seek to have recognised before a court.

The more significant tool for Greater China disputes is the interim-measures arrangement between Hong Kong-seated arbitrations and the Mainland courts, which has been in force since 1 October 2019. Under that arrangement, a party to a Hong Kong-seated HKIAC, ICC, or other designated-institution arbitration can apply directly to a Mainland court for preservation of assets, evidence, or conduct – before the award is issued. No other seat outside Mainland China offers this access. For a claimant whose counterparty holds assets in Guangdong, Shanghai, or elsewhere in the Mainland, that access is operationally decisive.

For assets outside Mainland China, the claimant must rely on the supervisory courts of the seat (in Hong Kong, the Court of First Instance) or the courts of the jurisdiction where the assets are held. Hong Kong courts have broad statutory power to grant injunctions in support of arbitral proceedings. An anti-dissipation order – commonly called a Mareva injunction (an order freezing assets pending the resolution of a dispute) – obtained in the Court of First Instance at this stage can extend to assets outside Hong Kong where the court is satisfied that the circumstances justify it.

What does the enforcement route actually look like – and what can go wrong?

The award is not self-executing. Enforcement requires an application to a court in the jurisdiction where the assets are located. The path differs depending on where those assets sit.

For assets in Mainland China, the mechanism runs through the bilateral arbitral-award mutual-enforcement arrangements (the 1999 Arrangement and the 2020 Supplemental Arrangement, as amended). A Hong Kong-seated award issued by a designated institution is recognised and enforced by Mainland people's courts under this route. Since a 2021 amendment, simultaneous enforcement applications – in Hong Kong and on the Mainland – have been permitted. That change matters for claimants whose counterparty holds assets in both places. The New York Convention does not apply to Mainland China – Hong Kong enforcement of Mainland awards; the bilateral arrangement is the exclusive channel.

For assets in other New York Convention states, the claimant presents a certified copy of the award and the arbitration agreement to the enforcement court. The court applies its domestic implementing legislation to refuse or recognise enforcement. Grounds for refusal are narrow – incapacity, invalidity of the arbitration agreement, lack of notice, scope excess, improper constitution of the tribunal, non-finality, non-arbitrability, or public policy. Each ground is a specific pleading risk that the claimant can anticipate and address at the pleadings and procedural stages.

The common mistakes in construction award enforcement fall into a small number of categories. First, the award is not final: it reserves costs, or it does not dispose of all claims. Enforcement courts scrutinise finality carefully; a partial award may not be registrable until the costs award follows. Second, the award creditor delays. Assets may be dissipated, pledged, or transferred in the period between the award and the enforcement application. The post-award interim measures window – which remains open – should be used aggressively. Third, the award is in a form that the enforcement court cannot recognise: a declaration without a money sum, or an order that requires local-law action to implement. Drafting the relief claim with the enforcement court in mind, from the pleadings stage, avoids this.

For a full treatment of the New York Convention enforcement route through Hong Kong, see our analysis at New York Convention enforcement route through Hong Kong.

What does a cross-border construction dispute look like in practice?

A practical illustration helps anchor the sequence described above.

A European infrastructure contractor engaged on a power-sector project in a Southeast Asian jurisdiction came to our desk in late 2024. The project company – incorporated in the local jurisdiction and ultimately owned through a BVI holding entity – had ceased making progress payments following a dispute about variation entitlements and a force-majeure notice. The contract was FIDIC Silver Book based, with a Hong Kong arbitration clause and HKIAC as the designated institution.

The first step was clause analysis. The contract required a dispute adjudication board determination and a notice of dissatisfaction before arbitration could be commenced. That process had been partly followed but not completed: the notice of dissatisfaction had been issued, but outside the contractual window. We advised the contractor to re-serve the notice on a without-prejudice basis, completing the procedural ladder correctly, while simultaneously requesting the engineer to re-determine the disputed variations. That step took approximately six weeks but protected the jurisdictional foundation of the arbitration.

The second step was interim measures. The BVI holding entity had a bank account in Hong Kong and a contract receivable in the Mainland. We obtained, through allied counsel working with the Court of First Instance, an anti-dissipation order over the Hong Kong assets and, through the interim-measures arrangement, applied to a Mainland court for preservation of the contract receivable. Both applications ran in parallel.

The arbitration itself proceeded under the HKIAC Rules. A three-arbitrator tribunal was constituted, with one arbitrator selected by each party and the presiding arbitrator appointed by the HKIAC. The hearing addressed the variation entitlements and the force-majeure defence. The outcome was a final award in the contractor's favour on the principal variation claims. Enforcement through the bilateral arrangement and directly against the Hong Kong bank account followed in the months after the award.

The instructive elements: the procedural ladder was completed before jurisdiction was asserted; interim measures were used immediately; enforcement was structured in parallel across two asset jurisdictions from the outset.

What are the common mistakes foreign counsel make in Asian construction arbitration?

Our cross-border practice sees a consistent pattern of avoidable errors in construction arbitrations involving Asian parties and projects.

The first – and most costly – is treating the multi-tier escalation clause as administrative inconvenience. It is a jurisdictional condition precedent. Courts in Hong Kong and in many enforcement jurisdictions have upheld objections based on incomplete pre-arbitration steps. The dispute board decision and the notice of dissatisfaction are not formalities; they are the foundation of the tribunal's jurisdiction.

The second is selecting the seat without analysing the enforcement endgame. A seat that produces an award efficiently but offers no route to the jurisdiction where the respondent's assets sit is a seat chosen for the wrong reasons. The question is not "which institution is best?" in the abstract. It is "which seat and which institution give me a legally recognised path to these specific assets?" For Greater China assets, the answer usually points to Hong Kong.

The third is delaying interim-measures applications. The window between service of the Notice of Arbitration and the respondent's awareness of the asset-risk is narrow. Emergency arbitrator applications and court-based anti-dissipation orders should be assessed at the same time as the decision to commence arbitration – not after the first procedural conference.

The fourth mistake is expert selection driven by professional relationships rather than expertise. Construction tribunals expect technical delay and quantum experts to engage with the contemporaneous records at granular level. An expert unfamiliar with the relevant construction industry context – or with the specific contractual standard (FIDIC, NEC, or a bespoke form) – will struggle to address the points the tribunal considers most important.

The fifth is failing to draft the relief claim with enforcement in mind. A declaration that the claimant is entitled to a sum "to be assessed" does not give an enforcement court a defined obligation to recognise. The final award should contain a money sum or a specifically defined non-monetary obligation. Counsel should think backward from the enforcement court to the pleadings when formulating the claim.

A decision checklist: what to verify before commencing

Before filing the Notice of Arbitration in a construction or infrastructure dispute with an Asian cross-border dimension, counsel and the in-house team should work through the following checklist.

First: is the arbitration agreement valid and binding in the relevant jurisdictions? This means checking formal requirements under the governing law of the contract and, separately, under the law of the intended seat. It also means checking whether a written arbitration clause was incorporated by reference from a standard form.

Second: has the multi-tier process been completed in the correct sequence? Every tier – engineer determination, dispute board, notice of dissatisfaction – must be checked against the contractual timeline before arbitration is commenced.

Third: what is the asset profile of the respondent? Assets in Mainland China, assets in Hong Kong, assets in third-jurisdiction New York Convention states – each requires a different enforcement route, and each route has different timing implications. Mapping the assets before commencing arbitration shapes every subsequent decision.

Fourth: are interim measures needed now? The answer to this question should be yes or no based on a considered assessment of the asset-dissipation risk – not a default. If the answer is yes, the emergency arbitrator and the Court of First Instance applications should be prepared in parallel with the Notice of Arbitration.

Fifth: is the tribunal being selected with technical expertise in mind? The presiding arbitrator in a substantial construction dispute should ideally have engineering or construction-industry familiarity, or deep experience in construction arbitration, or both.

Sixth: is the relief claim drafted to produce an enforceable award? A money sum, or a specifically defined obligation, with no carve-outs for costs to be assessed separately unless a separate costs award is also planned.

Seventh: is the seat chosen because it offers a route to the assets, or because it is convenient? These are different reasons, and only one produces recoveries.

The sequence above describes the standard position. Your matter turns on the documents, the jurisdictions actually engaged, and the order of steps – which is where the route is won or lost.

To discuss how the sequence above applies to your construction or infrastructure dispute and the cross-border enforcement position, contact us at info@lockhartyip.com.

Related practices

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• Disputes & Arbitration – international arbitration, enforcement, and cross-border dispute strategy
• Holding Structures – structuring holding entities above project assets across Hong Kong and offshore centres

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This publication is general information and does not constitute legal advice. For advice on your situation, contact info@lockhartyip.com.