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
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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
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
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 it’s 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.
• Don’t 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
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
• Don’t 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.
• Don’t 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