Dealing with Experts in Delay and Liability: Critical Case Study of a Construction Arbitrator’s Attempt to Expedite Proceedings

This paper critically evaluates methods to enhance efficiency in Malaysian domestic construction arbitration. It revisits core arbitration principles, particularly the balance between party autonomy and the competence-competence doctrine. It then examines the interplay between technical expertise and evidentiary challenges, especially in distinguishing liability from delay analysis. The paper also analyses procedural sequencing, focusing on the positioning of expert evidence in relation to factual testimony. Central to the inquiry is whether construction arbitration must remain strictly counsel-driven, and the extent to which tribunals can or should contribute to procedural streamlining. The study adopts a qualitative methodology, using document analysis of a construction arbitration case involving delay and liability, supplemented by supporting tribunal orders, submissions by parties, expert reports, and final awards. The findings suggest that tribunal-led procedures, such as expert joint reports and hot-tubbing, can expedite proceedings, reduce costs, and improve efficiency. The conclusion discusses the benefits and limitations of tribunal intervention in construction arbitration and proposes that tribunals should have greater authority to streamline expert evidence handling, especially in technical disputes like delay causation and liability analysis.