Seat, rules, tribunal composition and enforcement — the practical choices that shape how construction disputes on Ukrainian projects are arbitrated.
Where a construction dispute on a Ukrainian project cannot be settled commercially, it usually ends up in arbitration rather than the courts — particularly where international contractors, lenders or donors are involved. Construction arbitration in Ukraine therefore turns on a set of choices made long before any disagreement arises.
Choices made at contract stage
Seat and rules
The seat determines the supervisory court and the procedural law; the rules (ICC, LCIA, SCC, UNCITRAL or an institution in the region) shape timetable, cost and the appointment process. For projects with international financing, the choice is often driven by the lender’s requirements.
Tribunal composition
Construction disputes reward tribunals with genuine construction experience. A sole arbitrator may be proportionate for smaller claims; three-member tribunals are the norm for major infrastructure disputes.
Tiered clauses and dispute boards
Most international forms require a Dispute Avoidance and Adjudication Board before arbitration. Used properly, a standing board resolves issues while the works continue rather than years afterwards.
What decides the outcome
In practice, three things determine construction arbitrations more often than legal argument:
- Records. Contemporaneous site records, correspondence and programme updates.
- Programme analysis. Whether delay is demonstrated against a properly maintained programme — the subject of our delay and disruption introduction and the SCL Delay & Disruption Protocol.
- Expert evidence. Delay and quantum experts whose methodology withstands cross-examination.
Issues specific to the current period
Ukrainian projects raise questions that many tribunals are meeting for the first time at scale: force majeure and war risk, change in law, security-related suspension, availability of labour and materials, and the interaction of insurance with contractual relief. Consistent treatment of these issues will take years of decisions to settle.
Professional dialogue
SCL Ukraine brings arbitrators, counsel and experts together to examine these questions in public discussion. Our annual seminar on construction arbitration and dispute resolution is part of that programme — see forthcoming events.
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