2023-10-14 - Manipal Law School Construction Claims.pptx
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A presentation for a Manipal Law School course on construction disputes. The title was "Practical Tips on Construction Disputes" and it covered: Dispute Avoidance Dispute Management Dispute Resolutions
2023-10-14 - Manipal Law School Construction Claims.pptx
- 1. Practical Tips On Construction Disputes HASIT B. SETH Dispute Avoidance & Claims Management Course Manipal Law School 14 October 2023 (c) Hasit Seth, 2021
- 2. Introduction Name: HASIT B. SETH I am a disputes lawyer in India. My practice focuses on commercial dispute resolution covering IP, construction, contracts in litigation and arbitrations I am licensed to practice law in New York and India (c) Hasit Seth, 2021
- 3. Outline of Tips Dispute Avoidance Dispute Management Dispute Resolutions (c) Hasit Seth, 2021
- 4. Dispute Avoidance (c) Hasit Seth, 2021
- 5. Start with Contracts Unusual contract terms Irrational milestones Non-recognition of realities, e.g., site condition Imaginary ideal conditions Inflexibility in terms Approval mechanisms Active contract management (c) 2021, Hasit Seth
- 6. Hedge Risks Pricing risks can be hedged Sub-contractor monitoring and control Plan for other risks in contracts Political risks Social environment Litigation risks Methods: Resource allocation Cash management Meet obligations (c) 2021, Hasit Seth
- 7. Dispute Management (c) Hasit Seth, 2021
- 8. Dispute Mechanisms First steps: DAB, DAABs, Independent Engineers, PMCs Good documentation Correspondence index Communication Not communicating is not an option! Find good advisors early on Deep study of contract terms (c) 2021, Hasit Seth
- 9. Engineering Approach To Contracts Contract is a system with many moving parts. If there are contract design flaws, correct them early on. Monitoring variance from contract terms and actual performance is a key. Active risk assessment at each contract milestone is a must. Prepare periodic contract risk assessment reports just like its done for the project. Forecast problems using scenarios. (c) 2021, Hasit Seth
- 10. Create Documentation Trail Obsessively document facts in contract process. Contemporaneous records are the best evidence. Dont hesitate to place blame where it lies. Claims need basis in correspondence and reports. Prepare test reports very regularly and at least as many as required by the contract terms. (c) 2021, Hasit Seth
- 11. Dispute Resolution (c) Hasit Seth, 2021
- 12. Choosing the Right Mechanism DAB, DAABs can be very effective. Employers must respect IE / PMC recommendations. Arbitration can be quite expensive. Court or arbitration must be a final alternative. India does not have statutory adjudication, which is effective in many jurisdictions. Expert determination could be used, but is not preferred. Use mediation seriously. There is a law now for it. (c) 2021, Hasit Seth
- 13. Arbitration Governing & Seat Law For international contracts, this is a key issue. Civil law countries and common law countries have quite different principles. Choose it carefully. Law of the Seat can affect the progress of arbitration. (c) 2021, Hasit Seth
- 14. Arbitrators Dont prefer three arbitrators only for sake of neutrality. Nominated arbitrator is NOT your advocate / representative on the panel. Sole arbitrator logistics are easy. Costs are cheaper For larger disputes, choose an experienced arbitrator technical or judicial background is not the sole criteria. (c) 2021, Hasit Seth
- 15. Inputs In Arbitration Give good summaries of various analysis. Dont dump correspondence on the arbitrator. Provide analysis along with raw data. Submit Statement of Claim early if you are a claimant. Have good and relevant witnesses. (c) 2021, Hasit Seth