INTRODUCTION
While the object of international
contracting is to write and manage contracts so as to minimize disputes, some
disagreements are inevitable. These can arise from failures by one of the
parties, but also often arise from misunderstandings as to obligations under
the contract.
This programme will look at how
claims (and counter claims) arise; how they should be evaluated when received,
or prepared when being delivered, and how to resolve disputes arising from such
claims. It will also, and most importantly, look at ways of avoiding disputed
claims in the first place.
Once a dispute starts, it can
usually be solved most effectively by negotiation between the parties. However,
if this does not prove effective, some sort of third party intervention is
required.
Traditionally, this has tended to
focus on either involving state courts (litigation) or the equivalent private
method of getting a third party to make a decision (arbitration). However,
there are now many more techniques available in the international market,
including expert determination, mini-arbitration, pendulum arbitration,
adjudication, and other techniques whereby a third party decides the matter for
the parties. In addition, there are also mediation, conciliation, hybrid
solutions such as Arb/Med, where a third party facilitates the settlement by
the parties themselves, rather than imposing a decision. Many of these
techniques rely on looking at the parties’ interests, rather than their strict
legal rights.
All of these processes, and indeed,
claims and counterclaims generally, become more complicated when placed in an
international context. This is particularly the case where a foreign law and/or
legal system is involved, with which you may not be familiar, and which may
include rules which conflict with those of your own country.
The programme will deal with
commercial disputes arising from Contracts written in the English language, but
will use techniques which have wide application to the resolution of disputes.
WHO SHOULD ATTEND?
·
Contracts
analysis
·
Contract
engineers
·
Cost/planning
engineers
·
Individuals
involved in tendering/contracting functions
·
Project
Managers
·
Contract
Administrators
·
Contracting
Unit Supervisors
·
Claims
Managers and Business Audit Officers
·
Contract
Strategists
·
General
Managers involved in contract negotiation and disputes
·
Commercial
Managers
·
Legal
Department staff looking for new techniques and an international approach
·
Anyone
involved in the strategy and management of disputes
PROGRAMME OBJECTIVES
·
Provide
an understanding of how and why claims and counterclaims arise
·
Explain
the differences between claims and counterclaims
·
Identify
common causes of claims and disputes, and how to avoid them
·
Discuss
how to develop procedures to avoid disputes over claims and counterclaims,
while resisting unjustified claims
·
Enhance
understanding of basic negotiation techniques to be used when resolving
disputes
·
Provide
an understanding of some of the main methods of dispute resolution involving
third parties
·
Develop
an understanding of Traditional and Alternative Dispute Resolution techniques,
including different ways of resolving disputes without recourse to courts or
arbitration
·
Provide
strategies and tactics for negotiating during disputes
·
Explain
how to use contract provisions to reduce the risk of claims and disputes
TRAINING METHODOLOGY
Training will involve a high level
of interaction and delegate participation. The intention is that the trainer
will explain issues using real examples, many from the trainer’s personal
experience, but will then involve the delegates in discussion, using the
information provided. There will also be role play sessions on negotiating,
where delegates will work as teams to seek to agree disputes in realistic
scenarios.
Delegates are encouraged to bring
real problem examples with them, for discussion on a confidential basis, and to
share their experience of particular issues in their company or industry. Time
will be allowed for general discussions, and for one-to-one discussion with the
trainer.
PROGRAMME OUTLINE
|
DAY 1 -
HOW
CLAIMS & COUNTER CLAIMS WORK
·
Causes
of typical claims
o
Poor
drafting of requirements
o
Lack
of clarity in Scope of Work/Services
o
Misunderstanding
of legal or technical obligations By Client
§
By Contractor/Supplier
§
Deliberate "misunderstanding”
·
Counter
claims – how they differ from claims
o
Rights
of set-off
·
Overview
of main contractual provisions relevant to claims and counter claims
·
Obligation
to perform work
o
Standards
o
Programme
Acceleration
·
Variations
o
Extension
of time
o
Force
majeure
|
|
DAY 2 -
TYPES OF
CLAIMS & COUNTER CLAIMS
·
Types
of claims, in construction and other areas – and their distinctive features
o
Re-measure
disputes
o
Variations
– disputes on valuation
o
Variations
– disputes as to whether there is change
o
Breaches
of contract
o
Quality
of workmanship
§
Re-work
o
Rejection
of goods
§
Full rejection
§
Partial rejection
o
Liquidated
damages and penalties
o
Warranty
claims
o
Special
issues with EPC/Turnkey contracts
§
Interface problems – are these
always the Contractor’s responsibility?
§
Tracking change where client
involvement is limited
§
Special issues with documentation
in EPC and turnkey contracts
|
|
DAY 3 -
PRESENTING
AND EVALUATING CLAIMS & COUNTER CLAIMS
·
Requirements
for claim presentation
o
Notices
§
Timing, and time limits Are time
limits binding?
o
Format
o
Information
o
Supporting
documents
·
Defining
features of claims evaluation and management
o
Recognising
the causes of claims
o
Warning
signs of disputes
o
Recording
claims
o
Reviewing
claims
§
Requesting further information
§
Realistic appraisal
§
When to make admissions – and
denials
§
Offers of settlement
§
Independent review
o
Cumulative
effects
o
Managing
claims quickly and effectively to avoid disputes
o
Managing
claims and disputes
§
Involving lawyers
§
Managing the legal process
§
Setting goals
§
Decision trees
§
Controlling costs – and including
them in your thinking
|
|
DAY 4 -
DISPUTE
RESOLUTION
·
What
is a dispute?
·
Introduction
to dispute resolution methods and techniques
o
Stage
negotiation – setting up internal dispute resolution within the contract
o
Measures
of success – win-win negotiation
§
Understanding what constitutes a
"win” for you
§
What will be a "win” for the other
party?
o
Mirror
negotiation/red teams
·
Negotiating
"without prejudice”
·
Making
offers
·
Compromise
·
Bargaining
·
Interest-based
negotiations Moving away from rights-based thinking
o
Making
the cake bigger – settling other issues
o
Non-financial
solutions
o
Long-term
business relationships
·
Conflict
and its resolution
o
Defusing
conflict
o
Personality
clashes, and how to avoid them
o
Dealing
with disputes as they arise – not letting them fester
o
Traditional
dispute resolution
§
Litigation
§
Use of foreign courts
§
Enforcement
§
Arbitration
§
Domestic
§
International
§
Single or panel
§
Enforcement
o
Issues
with evidence and production of documents
·
Differences
between alternative dispute resolution methods Mediation
o
Med/Arb
and Arb/Med
o
Adjudication
o
Expert
determination
o
Early
Neutral Evaluation
o
Mini-Arbitration
o
Dispute
Review Boards
o
Pendulum
arbitration
|
|
DAY 5 -
·
Ethical
concerns Audit trails
o
Avoiding
the suspicion of unethical behaviour
o
Problems
with settlements based on interests, not rights
o
Applying
the same anti-corruption systems to claims as to tendering
·
Avoidance
is better than resolution Avoiding claims and counter claims
o
Avoiding
disputes
o
Avoiding
litigation and arbitration
·
Practical
application of techniques Opportunities to role play a few straightforward
negotiation scenarios involving typical contractual claims, counter claims
and disputes
·
Final
questions and wrap-up
|
