Bifurcation is not a shortcut: Why construction arbitration needs an evidentiary stability test

Construction arbitration’s obsession with bifurcation may be based on a false assumption: that separating issues necessarily reduces complexity.

In many construction disputes, it does not.

It increases it.

That should not be controversial, although it probably will be. Bifurcation has acquired the status of procedural good sense. It sounds organised. It sounds efficient. It sounds like something a tribunal should consider early, preferably before anyone has had the misfortune of reading the project correspondence.

But construction disputes have a reliable habit of exposing procedural optimism.

Having acted both as an expert and as an arbitrator, I have become increasingly persuaded that many bifurcation debates focus on the wrong question.

Experts encounter the consequences of evidentiary instability while preparing their analyses. Arbitrators encounter the same phenomenon later when managing proceedings, assessing expert evidence, determining what remains to be decided following a partial award and, occasionally, dealing with issues that were supposedly deferred but somehow found their way back into the dispute.

Both are observing the same problem.

The expert sees it through assumptions that cannot yet be fixed.

The arbitrator sees it through hearings that become wider than anticipated, reports that require revision and evidence that proves surprisingly difficult to confine within the procedural boundaries originally envisaged.

Yet bifurcation applications continue to be argued primarily in terms of overlap rather than dependency, and procedural separation rather than evidentiary stability.

Delay does not stay in the delay section. Quantum does not wait politely outside the liability phase. Technical causation does not become irrelevant because the procedural order says it will be dealt with later. The evidence moves across the dispute because the project moved across time, disciplines, decisions, instructions, consequences and cost.

That is the problem.

Bifurcation assumes that issues can be separated in a way that reduces the evidential burden. Sometimes they can. Often, in construction arbitration, they cannot.

The mistake is treating the ability to describe two issues separately as proof that the evidence supporting them can also be separated.

That is not analysis.

It is labelling.

The arbitration community has become comfortable asking whether issues are “intertwined.” That question remains useful. Indeed, common law courts have long recognised the risks associated with splitting issues where evidence remains interdependent.

The difficulty is that construction arbitration often lacks a sufficiently precise language for analysing those risks from an evidential perspective.

The more useful question is therefore:

Does the proposed bifurcation materially increase evidentiary stability?

Many experienced tribunals may already consider this instinctively. The value of an evidentiary stability analysis is that it makes the enquiry explicit.

Tribunals should therefore consider not merely whether issues can be separated, but whether the proposed separation materially increases evidentiary stability.

The proposition is simple:

Any evidence that is affected by preceding evidence will necessarily have a wider scope until that preceding evidence is settled or decided.

Until that happens, experts are not producing focused evidence. They are producing evidence on assumptions, alternatives, contingencies and scenarios. Arbitrators are not managing a narrowed dispute. They are frequently managing a dispute whose complexity has merely been redistributed.

That may be unavoidable.

It should not be mistaken for efficiency.

The comfortable myth of procedural efficiency

Bifurcation is attractive because it tells a tidy procedural story.

A tribunal identifies a threshold issue. That issue is determined first. If it succeeds, the arbitration narrows or ends. If it fails, the case continues. In theory, everyone saves time and cost, or at least has the comfort of having attempted to do so.

The theory is sound in the right case.

A jurisdictional objection may dispose of the dispute. A limitation defence may defeat a substantial part of the claim. A contractual notice requirement may bar entire categories of entitlement. A discrete interpretation issue may determine multiple downstream claims.

In those cases, bifurcation can be valuable.

The difficulty is that construction arbitration too often imports the language of bifurcation without testing whether the evidence can survive the split.

The procedural order may describe a clean division between liability and quantum. The evidence may decline the invitation.

A tribunal may shorten Phase 1 by postponing quantum evidence. That does not mean the arbitration has become more efficient. If the same experts later revisit the same records, rebuild the same assumptions, price alternative scenarios and produce supplemental reports after the first award, the proceeding has not necessarily been streamlined. It has simply been elongated with better headings.

It is possible to organise inefficiency very neatly.

 

Construction disputes are evidential systems

Construction disputes are not usually composed of discrete legal issues waiting to be placed into separate procedural folders.

They are evidential systems.

A major construction arbitration may involve delay, disruption, variations, prolongation, acceleration, defects, financing costs, contra charges, extensions of time, liquidated damages and final account valuation. Each part is capable of affecting another.

A delay event may affect prolongation cost. A variation may affect time and productivity. A technical defect may affect remedial scope, access, sequencing and valuation. A finding on concurrency may alter both entitlement and quantum. A rejected methodology may require the damages analysis to be rebuilt.

That is why broad liability/quantum bifurcation is often less straightforward than it appears. The problem is not simply that witnesses or documents overlap. That is the obvious point. The deeper point is that conclusions depend on other conclusions.

This is where evidentiary stability matters.

Evidence is stable when it can be prepared on a reasonably fixed foundation.

Evidence is unstable when it depends on unresolved findings that may materially change the scope, method or outcome of the analysis.

In construction disputes, much expert evidence is unstable until key factual, contractual, technical or delay findings are made. That instability drives cost, complexity and duplication.

It should be confronted directly, not disguised as procedural sequencing.

 

Why “intertwined” is too blunt a test

The usual objection to bifurcation is that the issues are “intertwined.”

That word has had a long and respectable career. It still has a role, but it cannot be allowed to do all the work.

It is useful shorthand, but it does not do enough work. It encourages tribunals to ask whether there is factual overlap between phases:

• Will the same documents be used?
• Will the same witnesses appear?
• Will the same experts be involved?
• Will the same factual matrix arise twice?

Those questions are relevant. They are not decisive.

The real issue is dependency because dependency is the principal obstacle to evidentiary stability.

The difficulty with overlap is that it asks only whether the same material appears in more than one phase. Dependency asks the more important question: whether the later evidence can be completed before the earlier findings are known. Overlap may increase duplication. Dependency determines whether the evidentiary stability exists at all.

If later evidence depends on earlier findings, it cannot be properly confined until those findings are made. That remains true even if the witnesses are different, the documents are different and the legal labels are different.

Simple illustrations are set out at Appendix 1. The point can be stated shortly: overlap and evidentiary instability are not the same thing.

From an expert’s perspective, the difficulty is obvious. The analysis cannot be finalised because key assumptions remain unresolved.

From an arbitrator’s perspective, the consequences often emerge later. Reports become conditional. Alternative scenarios multiply. Additional evidence is required following a partial award. The second phase becomes broader than originally anticipated.

The same problem is being observed from two different positions.

Experts experience the instability in the analysis.

Arbitrators experience it in the proceedings.

Take the extension of time example again. A liability phase determines whether a contractor is entitled to an extension of time. A quantum phase determines prolongation costs. On paper, those are separate topics. In practice, the quantum expert cannot assess prolongation without knowing the compensable period, the accepted delay events, the treatment of concurrency, the extent of mitigation and the causative link between time and cost.

Until those matters are fixed, the quantum evidence expands.

That expansion is not expert indulgence. It is the consequence of evidentiary instability.

The scope widens because the foundation is not settled.

 

The false comfort of “liability first, quantum later”

“Liability first, quantum later” is one of the most seductive phrases in construction arbitration.

It sounds economical.

It sounds sensible.

It sounds like common sense.

In many cases, it is a trap.

Liability in construction disputes often cannot be determined in isolation. To decide whether an event caused delay, the tribunal may need programme analysis. To decide whether disruption occurred, it may need productivity analysis. To decide whether a technical defect matters, it may need to understand remedial consequences. To decide whether a variation is payable, it may need to understand scope, valuation mechanism and duplication.

These are not always quantum issues in the narrow sense. But they are not clean liability issues either.

They occupy the unhelpful middle ground where most construction disputes actually live.

The problem with broad bifurcation is that it assumes away that middle ground. It proceeds as though liability can be determined first and quantum can then be slotted neatly into place afterwards.

That may work for a simple debt claim.

It is less persuasive in a multi-year infrastructure dispute involving delay, disruption, variations, defects, acceleration, prolongation and a final account with its own ecosystem.

The evidence does not become simpler because the procedural order says so.

 

Three examples of evidentiary instability

Three common patterns illustrate the point

 

Example 1: The delay claim that refused to stay in its place

A contractor claims an extension of time arising from late design information. The tribunal orders liability to be heard first, with quantum deferred.

At first sight, the split appears sensible. The tribunal will decide whether the employer caused the relevant delay. If the contractor succeeds, prolongation costs can be assessed later.

The difficulty appears almost immediately.

Was the design information actually late? Did it affect the critical path? Was the contractor already in delay? Was there concurrency? Was mitigation available? Did the event delay completion or merely consume float?

The liability phase now requires detailed delay analysis.

The quantum expert cannot simply wait for Phase 2. The prolongation calculation depends on the delay findings. Different delay findings produce different cost outcomes.

The bifurcation has failed to create evidentiary stability.

The issue deferred was unfortunately attached to the issue retained.

 

Example 2: The variation account that became a liability argument

A contractor advances a substantial variation account. The employer says some items were original scope, some were never instructed, some were overvalued and some duplicate other claims.

The tribunal orders liability first and quantum later.

The problem is that variation entitlement often depends on valuation architecture. Was the work a change? Was it instructed? Was it measured correctly? What valuation mechanism applies? Does the claim include cost already recovered elsewhere?

These questions cannot always be separated into an entitlement phase and a later arithmetic phase.

If the tribunal decides only that certain works were “variations”, the second phase may still require argument about the basis of valuation, the scope of the instruction, rates, duplication and causation.

At that point, the so-called quantum phase becomes a continuation of the liability dispute under a different heading.

The label has changed. The fight has not.

That is not evidentiary stability. It is procedural fog in a better suit.

 

Example 3: The final account that ate the arbitration

The final account is where bifurcation often meets reality.

A contractor claims variations, prolongation, disruption, acceleration, financing costs and productivity losses. The employer responds with delay damages, defects claims, contra charges and duplication arguments.

The tribunal considers liability first and quantum later.

It sounds sensible until one remembers that a final account is not a row of independent tins on a shelf. It is an interconnected commercial ecosystem. Occasionally a swamp.

Multiple heads of claim and counterclaim frequently overlap in time, valuation and recovery. Variations affect time. Time affects cost. Defects affect access and sequencing. Counterclaims may alter the same balances being claimed elsewhere.

Until the tribunal has determined which events matter, which periods are compensable, which valuation bases apply and which costs duplicate one another, the experts cannot produce a stable calculation.

The result may be revised claim schedules, new calculations, further expert meetings, supplemental reports, additional submissions and possibly a second hearing that looks rather like the first, only older.

At that point, the arbitration has not necessarily been bifurcated. It may simply have developed a sequel.

And as with most sequels, the original was quite long enough.

 

Evidentiary stability: The missing question

In my view the arbitration community has focused on the wrong question.

Evidentiary stability is not the only consideration relevant to bifurcation.

Tribunals must continue to consider proportionality, procedural fairness, cost, efficiency, party autonomy and, where relevant, the potential for early resolution of the dispute.

The argument advanced here is more modest.

Evidentiary stability is often the missing consideration.

Good tribunals often consider these issues instinctively. They ask whether a proposed split will genuinely narrow the dispute, whether expert evidence will need to be revisited, and whether the later phase will be manageable. The value of evidentiary stability is that it gives those instinctive concerns a clearer structure and language.

The question is not whether issues can be separated. Most things can be separated if one applies sufficient procedural force. That does not make the exercise useful.

Having considered bifurcation applications both as an arbitrator and as an expert, I have become increasingly persuaded that the more important question is whether bifurcation materially increases evidentiary stability.

The issue is not whether evidence can be divided into phases.

The issue is whether the proposed division reduces the assumptions, contingencies and alternative scenarios that the evidence must ultimately address.

If it does, bifurcation may deliver genuine efficiency.

If it does not, the arbitration may simply encounter the same complexity later under different headings.

Experts see analyses expand as unresolved assumptions multiply.

Arbitrators see proceedings expand as supposedly separate issues find their way back into later phases.

Both are symptoms of the same underlying problem.

Evidentiary stability exists where an early determination fixes the assumptions that later evidence requires. Once those assumptions are fixed, expert evidence becomes narrower, more focused and more useful.

Bifurcation may create evidentiary stability where the tribunal determines:

• whether it has jurisdiction;
• whether the claim is time-barred;
• whether a notice provision has been satisfied;
• whether a category of claim is excluded;
• whether a contractual clause applies;
• whether a discrete issue disposes of a substantial part of the case.

In those circumstances, the first phase removes uncertainty. The later evidence becomes easier because the number of possible routes has reduced.

But where the first phase leaves unresolved the assumptions required for the second, bifurcation merely postpones the problem rather than resolving it.

That is the point.

The value of bifurcation is not separation.

The value of bifurcation is stabilisation.

This may require a different way of thinking about bifurcation from that commonly adopted in arbitration practice.

Traditional debates often focus on overlap, efficiency or procedural convenience.

An evidentiary stability analysis asks a different question: what effect will this procedural decision have on the evidence that must ultimately be prepared, considered and tested?

That question places greater emphasis on evidential sequencing and, in some cases, the implications of evidentiary stability may extend beyond bifurcation itself and into wider questions of procedural design and tribunal management.

 

Experts often see the problem first — arbitrators often experience the consequences later

Experts typically encounter instability during preparation of evidence.

Arbitrators often encounter it later.

A tribunal may believe a preliminary issue has been resolved only to discover that the factual, technical or quantum assumptions underpinning the remaining evidence remain contested.

The result is familiar:

• revised expert reports;
• supplemental calculations;
• additional evidence;
• further hearings; or
• submissions explaining why the first award has altered the scope of the second phase.

Viewed from either side of the table, the underlying issue is usually the same. The evidence was not sufficiently stable when the bifurcation decision was made.

Experts know which opinions depend on unresolved findings. They know which assumptions may change the analysis. They know when a proposed bifurcation will not reduce work but expand it.

Yet bifurcation applications are usually argued as procedural and legal matters. Experts may be consulted behind the scenes, but tribunals rarely ask them directly what the proposed split will do to the evidence.

That is a missed opportunity.

Before ordering bifurcation, the tribunal should check whether the procedural map resembles the terrain.

It often does not.

 

Deferral is not efficiency

One of the most persistent errors in bifurcation debates is confusing deferred work with avoided work.

If a tribunal postpones quantum evidence, Phase 1 may become shorter. That does not mean the arbitration has become shorter overall.

The postponed work still exists.

Worse, it may become more expensive later.

Experts may need to remobilise. Project teams may have moved on. The tribunal may need to reacquaint itself with the facts. Assumptions may need to be rebuilt. Calculations may need to be revised. Experts may need to explain why earlier analyses no longer match the tribunal’s findings.

The cost has not disappeared.

It is merely waiting around the corner.

This is the uncomfortable truth: bifurcation may make the first phase cheaper while making the arbitration more expensive.

That is not efficiency.

That is procedural cash-flow management.

It may be useful in some circumstances. It should not be misdescribed.

 

Evidentiary stability is not the same as settlement potential

A common response to concerns about bifurcation is that its value may lie not in procedural efficiency but in its ability to encourage settlement.

That may sometimes be correct.

An early determination may clarify risk, alter negotiating positions or narrow the range of possible outcomes. In some disputes, that alone may justify a bifurcated approach.

However, settlement potential and evidentiary stability are not the same thing.

A bifurcation decision may increase settlement prospects while simultaneously increasing evidential complexity. Equally, a bifurcation decision may create evidentiary stability without bringing the parties any closer to agreement.

Tribunals should therefore be careful not to treat the possibility of settlement as proof of procedural efficiency.

A tribunal may generate settlement pressure without generating evidentiary stability.

The question addressed here is not whether bifurcation may assist settlement. It often can.

The question is whether bifurcation actually narrows and stabilises the evidence that the tribunal will ultimately require if settlement does not occur.

Those are different enquiries.

 

Early determination may be better than bifurcation

In many cases, the better tool is not broad bifurcation but targeted early determination.

If a claim is time-barred, determine that issue.

If a notice provision is dispositive, determine that issue.

If a pleaded claim cannot succeed as a matter of law, determine that issue.

If a jurisdictional objection is genuinely capable of ending the case, determine that issue.

But do not confuse that targeted exercise with a broad liability/quantum split.

They are not the same.

Early determination addresses a specific issue that may eliminate or narrow the dispute.

Broad bifurcation restructures the proceeding and may do so without reducing the evidential burden.

The advantage of early determination is that it may produce evidentiary stability without requiring extensive procedural fragmentation.

Construction tribunals should be more willing to use targeted procedural tools: preliminary issues, sample claims, representative variations, issue-specific hearings, expert scoping memoranda, common data sets and early expert meetings on assumptions.

These mechanisms may have less procedural theatre attached to them.

That is not necessarily a defect.

 

Apply the evidentiary stability test

Having considered bifurcation applications both as an arbitrator and as an expert, I would suggest that tribunals begin with a simple question before ordering bifurcation in a construction dispute:

Will the proposed bifurcation materially increase evidentiary stability?

The following five questions are designed to assist in answering that enquiry.

 

1. What evidence depends on unresolved findings?

The tribunal should map the dependency chain. Does quantum depend on delay? Does delay depend on technical causation? Does technical causation affect remedial scope? Does remedial scope affect cost?

If the later evidence depends heavily on unresolved earlier findings, caution is required.

 

2. Will Phase 1 materially increase evidentiary stability?

The tribunal should ask whether the first phase will fix the assumptions required for the second.

If it will, bifurcation may be justified.

If it will not, the exercise may simply postpone instability.

 

3. How many scenarios will experts need to analyse?

A few controlled alternatives may be manageable.

A sprawling assumption tree is a warning sign.

If experts must analyse multiple possible futures because the first phase will not settle key inputs, bifurcation may increase rather than reduce complexity.

 

4. Is work being avoided or merely deferred?

Only avoided work is true efficiency.

Deferred work is simply delayed cost.

A procedural timetable should not be allowed to disguise the difference.

 

5. Will the later evidence survive substantially unchanged?

This is the critical question.

If expert evidence would need substantial revision after the first award, the evidence is unstable.

Unstable evidence rarely lends itself to bifurcation.

Tribunals should also define phase boundaries with precision and, where appropriate, seek limited expert input on evidential sequencing. That is not expert overreach. That is case management.

 

The real test: Will the evidence become more useful

The purpose of arbitration procedure is not to create an attractive timetable.

The purpose is to help the tribunal reach a fair, reasoned and enforceable decision efficiently.

That requires useful evidence.

Bifurcation should be judged by whether it makes the evidence more useful.

If an early phase narrows assumptions, reduces scenarios, focuses expert evidence and removes unnecessary work, it is doing its job.

If it creates multiple alternative analyses, pushes unresolved assumptions into the future, requires experts to rebuild reports and leaves the second phase dependent on clarification of the first, it is not doing its job.

It may be procedurally tidy.

But tidy is not the same as efficient.

A beautifully organised muddle remains a muddle.

 

Beyond construction arbitration

Although this article focuses on construction disputes, evidentiary stability is not a construction-specific concept. The underlying issue is dependency. Where later evidence depends upon findings that have yet to be made, tribunals face the same question: will bifurcation reduce the evidential burden, or merely shift uncertainty between phases?

Construction disputes provide a useful illustration because those dependencies are often visible. Delay analysis may depend upon technical findings, quantum assessments upon entitlement decisions, and remedial costs upon causation. However, the same issue arises across international arbitration.

In contract, shareholder, post-acquisition, warranty, energy, infrastructure and investment disputes, expert evidence frequently depends upon unresolved findings concerning breach, causation, valuation methodology, valuation date or recoverable loss. The evidence may exist, but its final form remains contingent upon issues yet to be determined.

This observation has implications beyond any particular category of dispute. Traditional bifurcation analysis asks whether issues overlap. Evidentiary stability asks a different question: can the later evidence be prepared with confidence before the earlier findings are made?

Those enquiries are not the same. A dispute may involve substantial overlap yet remain suitable for bifurcation if the first phase materially stabilises the assumptions underlying the second. Equally, a dispute may involve limited overlap yet be unsuitable for bifurcation if later evidence remains dependent upon unresolved findings.

Evidentiary stability is therefore best understood as an additional procedural consideration rather than a replacement for established factors such as proportionality, fairness, efficiency, party autonomy and settlement potential.

Viewed in those terms, evidentiary stability is not a construction arbitration concept at all. It is a feature of any dispute in which evidence depends upon prior findings.

The central question remains simple:

Will the proposed bifurcation materially reduce the assumptions, contingencies and alternative scenarios that the tribunal will ultimately need to evaluate?

If the answer is yes, bifurcation may create genuine procedural efficiency. If the answer is no, it may simply divide the proceedings while leaving uncertainty intact.

If evidentiary stability is a determinant of procedural efficiency, construction arbitration may simply be where the problem is most visible, rather than where it is unique.

 

Conclusion: Stop splitting the wrong thing

Construction arbitration has become comfortable asking whether issues are intertwined.

That question remains relevant.

But it is not sufficient.

The important question is whether the evidence is stable.

Experts recognise the problem because they work within the assumptions.

Arbitrators recognise the problem because they ultimately manage the consequences of those assumptions.

Both are confronting the same issue.

Tribunals should therefore move beyond the language of intertwined issues and ask a more practical question:

Will this bifurcation materially increase evidentiary stability?

If the answer is yes, bifurcation may deliver the efficiencies that its advocates promise.

If the answer is no, the process may simply redistribute complexity rather than reduce it.

The value of bifurcation is not separation.

The value of bifurcation is stabilisation.

Intertwining may remain part of the analysis.

Evidentiary stability should become part of it too.

The implications of evidentiary stability may extend beyond bifurcation itself and into wider questions of procedural design, evidential sequencing and tribunal management.

Otherwise, we are simply reading the same book twice — and arguing about the preliminaries both times.

 

Appendix 1: Illustrative examples of intertwined issues and evidentiary stability

1. A Delay Expert’s perspective

Under a traditional bifurcation analysis, a tribunal might ask:

Do the liability and quantum issues overlap?

Suppose a contractor claims:

• a 100-day extension of time; and
• AED 10 million in prolongation costs.

The tribunal observes that the delay and quantum experts will rely on many of the same documents, witnesses and factual events. It concludes that the issues are intertwined.

That analysis is not wrong.

It is simply incomplete.

The more useful question is whether the quantum evidence can be finalised before the delay findings have been made.

Suppose the employer says:

• only 20 days are compensable; and
• the remaining delay is concurrent.

The quantum expert can prepare a prolongation claim. But:

• if the tribunal awards 100 days, one valuation applies;
• if it awards 50 days, another valuation applies;
• if it awards 20 days, another valuation applies; and
• if it finds concurrency, another valuation applies again.

The issue is not merely that liability and quantum overlap.

The issue is that the quantum evidence cannot be settled until the liability findings are known.

The evidence is unstable.

 

2. A Technical Expert’s perspective

The same point arises in technical disputes.

Assume an employer alleges defective waterproofing.

The contractor says the leaks were caused by maintenance failures, later damage by others or incorrect operation.

A technical expert investigates the cause.

A quantity surveyor investigates remedial cost.

At first glance, these appear to be separate issues.

The better question is:

Can the remedial cost evidence be finalised before the technical cause is determined?

Suppose:

• if Cause A is correct, localised repairs are required costing AED 1 million;
• if Cause B is correct, complete replacement is required costing AED 8 million; and
• if Cause C is correct, there is no contractor liability and no recoverable cost.

The quantity surveyor can prepare a valuation.

But the valuation depends entirely on which technical opinion the tribunal accepts.

The valuation exists.

It is not stable.

Nothing is wrong with the quantity surveyor’s work. The instability arises because the technical foundation has not yet been determined.

The question is not whether technical liability and valuation are intertwined.

The question is whether the valuation evidence can be finalised with confidence before the technical issues have been decided.

 

3. A bifurcation point that does not reduce expert work

A common assumption is that

resolving a preliminary issue automatically reduces the expert burden.

It often does not.

Suppose the tribunal orders a first phase to determine whether Variation 25 was instructed.

After submissions and a hearing, the tribunal concludes that it was.

The arbitration then proceeds to Phase 2.

The experts still need to determine:

• the scope of the variation;
• quantities;
• applicable rates;
• valuation methodology;
• productivity impact;
• programme impact; and
• any prolongation consequences.

The issue has been resolved.

The expert work has barely changed.

The tribunal has determined a bifurcation point.

It has resolved a procedural issue without creating meaningful evidentiary stability.

The relevant question is not:

Was the bifurcation issue resolved?

It is:

Did resolving it materially reduce the assumptions that the experts still need to address?

If the answer is no, the parties may simply have spent time and money resolving an issue that did little to narrow the evidence that follows.

 

The point

Intertwined asks:

Do the issues overlap?

Evidentiary stability asks:

Can the later evidence be completed with confidence before the earlier findings are known?

Those are not the same question.

A dispute may exhibit significant overlap and still be suitable for bifurcation if the first phase materially narrows the assumptions underlying the second.

Equally, a dispute may exhibit relatively little overlap and still be unsuitable for bifurcation if the evidence in the second phase depends upon findings that have not yet been made in the first.

The real issue is not overlap.

It is dependency.

 

About the author

Michael Tonkin is a Chartered Quantity Surveyor, Chartered Arbitrator and Chartered Builder over 35 years of construction industry experience. He is an effective dispute resolver and has acted as quantum expert on around 80 occasions and arbitrator around 70 times.

Michael is the current Deputy President of the Chartered Institute of Arbitrators and will become President in 2027.