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

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
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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 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

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
• 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