After the publication "Provision of expert evidence in construction and engineering disputes" this booklet is the second in a series launched in 2022. It intends to describe the means and importance of identifying, managing and sharing written evidence in arbitration proceedings as this represents a challenge, often neglected, and a workload clearly underestimated by the parties who have brought their case before Arbitral Tribunals. This booklet was written by Vincent Lefeuvre, Senior Director at FTI Consulting France and technical, delay and quantum expert.
Given both the growth in the technical scope and complexity of cross-border construction projects and the growth in communication capacities, it is possible that the daily production of documents (project documents) by the parties, which are then exchanged between them, will increase in the same proportions. Today, it is not uncommon that in the course of construction projects, between 200,000 and 1,000,000 documents are produced in various forms.
This volume of documents to be dealt with in the context of a dispute, on the one hand, and the acceleration or increasing complexity of legal processes - particularly with the ratification of the choice of arbitration in most of the contracts signed - on the other, make the mastery of project documentation absolutely essential. This represents the main silent witnesses of the events that shape a dispute.
Having access to this contemporaneous documentation is important in all international commercial arbitrations, and particularly so in complex cross-border construction disputes. The reason for this is that Arbitral Tribunals are tasked with understanding the facts in great detail in order to determine the cause and effect of each event brought to their attention by the parties and to apportion liability.
In an arbitration proceeding, the role of written evidence is to establish the facts. In general, proper project documentation, part of which is to be presented to the Arbitral Tribunal as written evidence, is essential to meet the burden of proof, i.e. the burden of ensuring that a statement, supported by a party, is more likely to be considered true than false by the Arbitral Tribunal. It is essential to identify the facts in a large volume of project documents, to validate their relevance and to produce them at the right time, with the required quality, to the Arbitral Tribunal, according to the rules of the Arbitration Chamber designated by the parties.
This second booklet describes the different ways in which documentation may be essential in a construction arbitration, provides a general overview of the steps that different types of documents have to go through in order to be ultimately accepted as evidence by the Arbitral Tribunal and underlines the absolute necessity of using suitable computerised means to meet this requirement. It discusses in particular the legal framework in which the written evidence of a construction project in the arbitration phase fits, its definition and the means of identifying, managing and sharing it.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
