An Empirical Insight into the Interpretation of Time-Bar Clauses in International Construction Arbitration

Construction contracts, whether bespoke or standard forms, typically include clauses that require the claimant to notify its intention to submit a claim within a specific time period. These clauses are controversial. As international arbitration is the default mechanism for the resolution of disputes arising from international construction contracts, international arbitrators are expected to face the challenge of deciding on the meaning of these clauses and their effect. They have to decide whether time-bar clauses are effective in shielding the respondent from the claimant’s claims. This paper provides rare empirical insight into how international arbitrators decide on these clauses. This research follows a grounded theory strategy and draws on primary data gathered from semistructured interviews with 28 international arbitrators and secondary data collected from International Chamber of Commerce (ICC) arbitral awards. The paper argues that arbitrators’ interpretation of time-bar clauses is shaped by three interrelated factors: the contract wording, the governing law, and the arbitrator’s own background. While contractual wording and governing law determine the formal legal framework, an arbitrator’s legal culture background introduces interpretive bias, influencing whether the clause is applied strictly or leniently. These findings align with legal realism, suggesting that arbitral decisions are not determined solely by the contract and law but are influenced by extra-legal factors embedded in arbitrators’ backgrounds.