Pleadings or Memorials: Which Are More Appropriate for Construction Arbitrations?
Michael Grose & Kristian Cywicki
Construction arbitrations present some unique challenges which, in turn, call for special attention to be given to devising an efficient arbitration process. One issue that arises in this regard is the time-honoured question of whether to adopt an approach based on pleadings (common law) or memorials (civil law). In addressing this question, the starting point should be to consider the applicable arbitration/institutional rules (if any) and, thereafter, the relative merits of each approach. Notwithstanding the respective advantages and disadvantages of pleadings and memorials, it is always advisable for the parties, their legal advisors and the tribunal to have regard to the specific challenges of each case, particularly those presented by construction arbitrations. Regardless of the respective pros and cons of pleadings or memorials, the adoption of one approach over the other cannot guarantee an efficient arbitration on its own.