Lessons Learned in International Arbitration: What Not To Do When Preparing and Presenting Your Case

Insights from Beale & Co’s International Arbitration Practice

International arbitration remains the predominant dispute resolution mechanism for major construction and infrastructure projects worldwide. Drawing on Beale & Co’s extensive experience across complex, high-value arbitrations, this article identifies the most common mistakes that parties make when preparing and presenting their cases; pitfalls that prove decisive not because the underlying merits are lacking, but because avoidable errors in execution undermine what might otherwise be a winning position.

Construction arbitrations are, in many respects, conceptually straightforward: what was planned, what changed, who bears responsibility, and what loss followed. Our experience consistently demonstrates that how a case is structured, evidenced and presented is frequently more determinative of the outcome than the underlying merits.

Failing to Establish a Clear Project Narrative

One of the most damaging mistakes a party can make is to approach proceedings without a clear and coherent project narrative. Too often, parties advance discrete heads of claim – delay, disruption, variations, defects and payment disputes – as isolated silos, without weaving them into a single, persuasive account of how the project unfolded. The result is that tribunals are left to piece together events from voluminous documentation, rather than being guided through a logical explanation of what happened and why it matters.

For claimants, otherwise meritorious claims lose force because they lack cohesion. For respondents, the failure to articulate a credible alternative narrative allows the claimant’s version of events to dominate by default.

The lesson is clear: do not treat a construction arbitration as a collection of disconnected technical arguments. The case must be built around a clear, chronological and evidence-based narrative that tells the story of the project. Parties that fail to do so place themselves at a material disadvantage from the outset.

Changing Delay Strategy Mid-Proceedings

Delay analysis sits at the heart of most construction disputes, yet parties remarkably often revise or abandon their methodology partway through proceedings, typically because the initial approach proves unsustainable under scrutiny. A shift in methodology undermines confidence in the case as a whole and invariably produces inconsistencies between pleadings, factual evidence and expert opinion. Tribunals are particularly alert to delay analyses constructed retrospectively to fit a desired outcome.

For claimants, an unsupported, poorly developed or shifting delay case can fatally undermine entitlement arguments.  For respondents, the corresponding error is to adopt a purely reactive posture, responding to the claimant’s delay analysis without developing and presenting a positive alternative case. This approach frequently means that weaknesses in the opposing case are neither properly identified nor effectively challenged.

The lesson: do not enter proceedings without a settled delay strategy. The methodology, baseline programme, identification of the critical path and reliance on contemporaneous records must all be established at the earliest opportunity and applied with rigorous consistency throughout the arbitration.

Relying on Volume Rather Than Relevance

Construction projects generate vast quantities of documentation. A common error is to equate volume with strength, both in document production and in written submissions. Indiscriminate production obscures the key issues and risks overwhelming the tribunal, while poorly targeted disclosure requests may fail to capture the evidence that establishes entitlement or causation.

This approach is rarely effective and is often counterproductive. Indiscriminate document production obscures the key issues and risks overwhelming the tribunal.  Equally, poorly targeted disclosure requests may fail entirely to capture the evidence that actually establishes entitlement or causation, the very documents on which the case depends.

For claimants, excessive reliance on large volumes of material dilutes the core case. For respondents, a failure to deploy critical documents strategically may mean missing opportunities to dismantle the claimant’s narrative at its foundations.

The lesson: do not bury the tribunal in paper. Successful cases are built around the documents that demonstrate what happened in real time. Using documents selectively to support a narrative not grounded in the contemporaneous record is a strategy that tribunals will see through.

Fielding the Wrong Witnesses

Witness selection is an area where parties routinely make avoidable errors. There is a persistent tendency to put forward senior personnel as factual witnesses, even where those individuals had limited involvement in day-to-day project delivery. Tribunals are quick to identify witnesses who cannot explain how the programme operated or how specific events affected progress, and such evidence carries little weight.

By contrast, witnesses who were directly involved in the project and who worked with the relevant documents daily are invariably more persuasive. They can speak to the practical realities and provide contextual detail that cannot be derived from documentation alone.

The lesson: do not select witnesses for seniority alone. The most effective factual witnesses are those with hands-on project knowledge who can explain both the documents and the underlying events with authority and credibility.

Key takeaways

The mistakes identified above are not theoretical, but rather errors that Beale & Co encounters repeatedly in international arbitration, on both sides of the dispute. Each is avoidable, and each can be decisive. Cases are frequently lost not because the underlying position is weak, but because avoidable failures in preparation and presentation prevent the merits from being properly communicated to the tribunal. Parties that invest in getting these fundamentals right place themselves in a materially stronger position from the outset.

If you have any questions regarding the information discussed in this article, please contact the authors.