How to approach arbitrating a construction

Q: What documents are needed for arbitrating a construction or infrastructure dispute in Asia?

The core documents are the contract and its annexures, the arbitration agreement, any conditions-precedent notices already issued, and the contemporaneous project record – site diaries, engineer's instructions, payment certificates, variation orders, and all relevant correspondence. For delay claims, the as-planned and as-built programmes are essential. For quantum claims, the cost records and payment history are the foundation of the expert evidence. Parties should verify the current documentary requirements of the chosen institution before filing.

A construction or infrastructure dispute in Asia rarely sits neatly within a single legal system. The engineer is appointed under one law. The contract is governed by another. The employer's assets – the ones that will actually satisfy a final award – sit in a third jurisdiction. For in-house counsel managing that complexity, the central question is not whether to arbitrate but how to sequence the process so that a favourable award can be enforced where it matters.

Arbitrating a construction or infrastructure dispute in Asia requires a step-by-step approach built around three gates: a valid arbitration agreement, a well-chosen seat and institution, and an enforcement route mapped to the respondent's assets before the first filing is made. Hong Kong, as a seat governed by the Arbitration Ordinance (Cap. 609) and aligned with the UNCITRAL Model Law, sits at the intersection of the common-law system and Mainland China's enforcement regime – making it the natural hub for disputes with a Greater China or wider Asian dimension. The guide below walks through each stage in the order it actually matters.

The steps run from contract review and forum analysis through to enforcement, with the asset endgame anchoring each decision along the way.

Step 1: Before the dispute is filed – read the contract and map the assets

The arbitration agreement is the gateway. Without a valid, enforceable clause, every subsequent step rests on uncertain ground. The first task is to read the dispute-resolution clause precisely: the agreed seat, the chosen institution or ad hoc rules, the governing law, and any conditions precedent such as a mandatory mediation or engineer's decision period.

Construction and infrastructure contracts in Asia frequently layer multi-tier dispute resolution. A condition precedent – a notice of dissatisfaction, a dispute adjudication board referral, or a senior-management escalation step – that is not followed can be used by the respondent to challenge jurisdiction or seek a stay. In our cross-border practice, we see this procedural gap exploited at the threshold stage more than any other single point of failure.

In parallel with the contract review, map the respondent's assets. Ask: where does the award actually land? For a state entity or a project company in Mainland China, a Hong Kong-seated award has a dedicated enforcement route through the Arrangement on Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong SAR. For a BVI or Cayman holding entity, the enforcement route runs through the common-law courts of the relevant offshore jurisdiction. For a government or sovereign entity anywhere in the region, consider whether a foreign-immunity doctrine applies – and note that the Foreign States Immunity Law of the PRC came into force on 1 January 2024, introducing a restrictive immunity doctrine applicable in the Mainland courts.

The asset map determines the seat. If the money sits in the Mainland, a Hong Kong seat is structurally the correct choice. If the assets are spread, consider which forum produces the most options for interim relief and final enforcement.

Step 2: Choosing the seat and the institution – what the choice actually controls

The seat of arbitration governs the procedural law, the supervisory court, and – critically – which courts can grant interim relief in support of the arbitration. For construction and infrastructure disputes with Mainland exposure, a Hong Kong seat is the only seat from which a party can seek interim measures from Mainland courts before an award is issued, under the Arrangement on Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Hong Kong SAR, which has been in effect since 1 October 2019.

That mechanism matters for construction disputes. Project assets – retention money, performance bonds, equipment, receivables from sub-contractors – are often fixed in location. A party that can freeze assets in the Mainland during proceedings has a fundamentally stronger hand than one waiting for an award before taking action. The interim-measures Arrangement is available only for arbitrations seated in Hong Kong and administered by institutions on the approved list, which includes the HKIAC.

The HKIAC Administered Arbitration Rules, in their current form effective 1 June 2024, set the default seat as Hong Kong absent party agreement and provide for emergency arbitrator proceedings ordinarily completed within 14 days of file transmission. For a dispute involving a project in Asia with assets in the Mainland, those two features – the interim-measures Arrangement and the emergency-arbitrator mechanism – create a material procedural advantage over seats that offer neither.

Institution selection follows from the seat choice. The HKIAC is the natural choice for a Hong Kong seat. Other international institutions administer arbitrations seated in Hong Kong, and parties may choose rules appropriate to the industry and the complexity of the matter. What matters structurally is that the institution is on the approved list for the interim-measures Arrangement if Mainland relief is in scope.

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. For a structured assessment of the seat and institution choice across the relevant jurisdictions, write to us at info@lockhartyip.com.

Step 3: Filing the notice of arbitration – what must be in it and what triggers the clock

The notice of arbitration under the HKIAC Administered Arbitration Rules formally commences the arbitration and triggers the institutional clock. It must identify the parties, the arbitration agreement, a description of the dispute and relief sought, and the number of arbitrators. Omissions at this stage create jurisdictional surface area for the respondent to attack.

In construction and infrastructure disputes, the relief sought in the notice matters more than in ordinary commercial arbitrations. Claims typically include: unpaid progress certificates, delay damages, loss and expense, extension of time, and defects liability. Each head of claim must be traceable to the contract. The notice is also the point at which a party elects whether to include a counterclaim from a respondent perspective, and that election affects the constitution of the tribunal.

The number of arbitrators is a structural decision. A sole arbitrator is faster and cheaper; a three-member tribunal provides depth for technically complex construction disputes involving engineering evidence, programme analysis, and quantum. For major infrastructure disputes in Asia, a three-member tribunal is standard. Parties should agree on the number at the outset – the HKIAC rules provide a default if the parties cannot agree.

At this stage, consider whether emergency relief is needed alongside the notice. An emergency arbitrator application filed with the notice can, under the 2024 HKIAC Rules, produce an order within 14 days. That order can then be deployed either in the Hong Kong courts or, where available, through the interim-measures Arrangement in the Mainland. The timing matters: project assets – especially bonds, retention, and plant – can be dissipated quickly once a counterparty is aware that proceedings are imminent.

Step 4: Constituting the tribunal – technical expertise and common mistakes

Tribunal constitution is the step most frequently under-prepared in construction and infrastructure arbitrations. A tribunal that lacks engineering or quantity-surveying familiarity will require longer to understand the technical record. That translates directly into extended proceedings and higher costs.

For disputes involving delay and disruption claims – among the most common in Asian infrastructure projects – experience with programme analysis methodologies is essential. A tribunal member familiar with contemporaneous delay analysis will handle expert evidence on extension of time more efficiently than one approaching the methodology for the first time.

The common mistake in cross-border construction arbitrations is treating arbitrator selection as a legal exercise only. Construction disputes are partly technical proceedings. The arbitrator's ability to manage engineering expert evidence, read a programme, and understand a bill of quantities is a material factor in the outcome. In our cross-border practice, we regularly advise on the composition of tribunals for infrastructure disputes across the region, and the technical profile of the appointees is consistently among the most consequential decisions made during proceedings.

The presiding arbitrator, where a three-member tribunal is used, is appointed by agreement of the two party-appointed arbitrators or by the institution. Parties should consider proposing names actively and not defaulting to institutional appointment for the presiding role without engagement. The HKIAC has a well-regarded process for appointing in default, but a party with a view on technical expertise should express it clearly and early.

How does the Hong Kong seat interact with Mainland enforcement?

A Hong Kong-seated award in a construction or infrastructure dispute can be enforced in Mainland China through the 1999 Arrangement on Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong SAR and the 2020 Supplemental Arrangement, which since a 2021 amendment permits simultaneous enforcement applications in both jurisdictions. That means a party need not wait for one enforcement process to conclude before commencing the other.

The practical consequence for construction disputes is significant. If a respondent holds assets both in Hong Kong and on the Mainland – a project company with receivables in Guangdong and a bank account in Hong Kong – an award creditor can pursue enforcement concurrently without the delay of sequential proceedings. The 2020 Supplemental Arrangement also extended mutual recognition to certain non-monetary relief, which matters where the primary remedy is performance or rectification rather than damages.

For enforcement against a state entity or a government-backed project company, the Foreign States Immunity Law of the PRC, in force since 1 January 2024, is relevant. The restrictive immunity approach it adopts means that commercial activities – including construction contracts and project agreements – may not attract sovereign immunity in the same way as governmental functions. Parties contracting with state-adjacent entities should verify the current position on immunity and waiver with counsel before proceedings are commenced.

For assets in BVI or Cayman holding entities – a common structure in Asian infrastructure projects – enforcement runs through the common-law courts of those jurisdictions under the rules applicable to foreign arbitral awards. Those courts are experienced with New York Convention-aligned enforcement and the process, while it carries its own steps, is well-travelled for parties advised by counsel with offshore experience.

If an earlier filing, structure or enforcement attempt produced an adverse or stalled result, a second read can identify the strategic error and the routes still open. Email info@lockhartyip.com to discuss the current position.

Step 5: Managing the proceedings – construction evidence and the hearing

Construction arbitration produces a documentary record unlike most commercial disputes. Programmes, daily site reports, variation orders, instructions, payment certificates, correspondence between the engineer and the contractor – all of it forms part of the contemporaneous record that a tribunal uses to assess the claims. The organisation and presentation of that record is a specialist exercise.

Delay and disruption claims require a programme methodology. The most commonly used approaches in Asian construction arbitrations are the as-planned versus as-built method, the impacted as-planned method, and the time impact analysis. Expert witnesses presenting delay evidence should be appointed early, given clear terms of reference, and their reports timetabled so the tribunal has time to read and digest the analysis before the hearing. A tribunal faced with a 300-page delay report served two weeks before the hearing will not absorb it effectively.

Quantum expert evidence – the calculation of loss and expense, preliminaries, and direct delay costs – is equally technical. The quantum expert and the delay expert should be coordinating, since their evidence frequently intersects. A gap between the two experts' assumptions is a consistent point of attack in cross-examination.

The hearing itself in a substantial construction arbitration often runs over multiple weeks. Site visits are used in some disputes where physical conditions are in issue – a tribunal physically inspecting a defective structure or an incomplete works section is better placed to understand the engineer's evidence. Parties should agree the hearing programme in advance and consider whether a Scott Schedule – a structured document setting out each defect or variation claim with the parties' positions in columns – will assist the tribunal.

What are the most common mistakes in construction arbitrations across Asia?

Several patterns recur. The first is misreading the conditions precedent. A contractor that serves a notice of arbitration before exhausting a mandatory dispute adjudication board step, or a party that fails to issue a notice of dissatisfaction within the required period, hands the respondent a threshold objection that may delay or derail the proceedings before the tribunal is even constituted.

The second is treating the arbitration agreement as peripheral rather than central. Governing-law and seat selections made at contract signing are often delegated to junior staff or copied from a precedent without analysis. When the dispute arises, the parties discover that the seat produces no enforcement route to the assets, or that the agreed rules require a sole arbitrator for a technically complex multi-party matter.

The third, and perhaps the most consequential for the asset endgame, is failing to act on interim relief early enough. By the time an award is obtained in a construction arbitration – often two to three years after filing in a major dispute – a project company with limited assets may have distributed them or become insolvent. A party that does not apply for interim relief at the outset, whether through the emergency arbitrator mechanism or through the Hong Kong courts under the Arbitration Ordinance, is taking a credit risk on the enforceability of its award.

There is also a myth worth addressing directly. Some in-house teams assume that construction disputes are unsuited to arbitration because the technical evidence is too complex. The opposite is true: institutional arbitration with a technically experienced tribunal, managed under the HKIAC Administered Arbitration Rules, is precisely the mechanism designed for complex multi-party and multi-contract disputes of the kind that Asian infrastructure projects generate. The flexibility of the process – in evidence, in tribunal composition, and in timetabling – is an advantage over court litigation for this category of dispute.

Decision checklist before commencing arbitration

Before filing a notice of arbitration in a construction or infrastructure dispute, the following points should be resolved:

Is the arbitration agreement valid and enforceable under its governing law? Does it name a seat, institution and number of arbitrators?
Have all conditions precedent – engineer's decision, DAB referral, notice of dissatisfaction, escalation – been satisfied within the contractual time limits?
Where are the respondent's assets? Is the asset map documented and current?
Does the seat choice produce an enforcement route to those assets? Is Mainland interim relief available under the Arrangement, or is enforcement via an offshore common-law route?
Is emergency arbitrator relief needed? Is there a risk of dissipation of project assets before a substantive award?
Has the technical profile of the arbitrators been considered, not just their legal background?
Are the delay and quantum experts identified and briefed on their terms of reference?
Is the contemporaneous documentary record – programmes, site diaries, payment certificates, variation records – preserved and organised?
Has the interaction with any parallel dispute resolution – a pending court action, a bond call, a termination dispute – been mapped and a sequencing decision made?

For more on the Lockhart & Yip approach to disputes and arbitration across the region, see our Disputes & Arbitration practice page. Where a construction dispute intersects with joint-venture or shareholder issues – as is common with project-company structures – our analysis of shareholder and joint-venture disputes with a United Kingdom partner addresses the structural and enforcement dimensions. Where emergency relief is in scope, our guide to emergency arbitrator relief in Hong Kong-seated arbitration sets out the mechanism and timing in detail.

Related practices

Disputes & Arbitration – international arbitration, enforcement and cross-border dispute resolution
Holding Structures – structuring above project companies for enforcement and asset protection

Frequently asked questions

How long does arbitrating a construction or infrastructure dispute in Asia usually take?

Duration depends on the complexity of the technical record, the number of parties, and the tribunal's availability. A substantial construction arbitration – involving delay, disruption, and quantum claims across a major infrastructure project – typically runs between 18 months and three years from notice of arbitration to final award. Under the HKIAC Administered Arbitration Rules, an expedited-procedure award should be rendered within six months of file transfer to the tribunal, but that procedure is suited to disputes that meet the eligibility criteria. Emergency arbitrator proceedings are ordinarily completed within 14 days of file transmission. The length of the main proceedings is driven primarily by the volume and technical complexity of the expert evidence.

What does the route look like for arbitrating a construction or infrastructure dispute in Asia?

The route follows a defined sequence: contract and asset review, seat and institution selection, satisfaction of any conditions precedent, filing of the notice of arbitration (with or without an emergency application), constitution of the tribunal, pleadings and document production, expert evidence on delay and quantum, hearing, and final award. Enforcement then follows against the respondent's assets in the relevant jurisdiction – through the Mainland–Hong Kong mutual enforcement arrangements for Mainland assets, or through the common-law courts for offshore holding entities. Each gate in the sequence has its own timing and documentation requirements.

What documents are needed for arbitrating a construction or infrastructure dispute in Asia?

The core documents are the contract and its annexures (including the specification, bills of quantities, and programme), the arbitration agreement, any conditions-precedent notices already issued, and the contemporaneous project record – site diaries, engineer's instructions, payment certificates, variation orders, and all relevant correspondence. For delay claims, the as-planned and as-built programmes are essential. For quantum claims, the cost records and payment history are the foundation of the expert evidence. An organised and complete documentary record at the outset materially affects both the cost and the outcome of the proceedings. Parties should verify the current documentary requirements of the chosen institution before filing.

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

How to approach arbitrating a construction or infrastructure dispute in Asia