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 can be reduced or avoided by good
contrcts management; 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 contracts management 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 SUMMARY
Participants will be introduced to
some of the latest international practices in dispute resolution and shown how
to build such practices into their contract documents. Personnally, you will
achieve:
·
Increased
recognition of the causes of claims and disputes
·
Improved
contracts management leading to fewer disputes and more rapid resolution of
those that do arise
·
Develop
negotiation skills, which will be useful tools in all types of negotiating
·
Heighten
understanding of the available methods of resolving disputes
·
Increase
working knowledge of legal implications and potential problems with foreign
legal systems
·
Improve
understanding of different approaches to resolution of disputes in an
international context
·
Understand
the issues arising from the enforcement of judgments or awards where the
parties are in different countries
·
Improve
ability to reduce the risk of claims and disputes
·
How
to manage dispute resolution processes
Additional competencies emphasised:
·
Claims
avoidance
·
Claims
management
·
Negotiating
·
Dispute
avoidance
·
Developing
strategies and tactics
·
How
to prepare counterclaims
·
Understanding
issues in a complex international environment
·
Analysing
and drafting contract clauses
·
Understanding
of different legal systems and their approaches to contracts
·
Commercial
awareness
·
Looking
to resolve disputes based on interests, not just rights
For your organisation, it will
provide:
·
Expand
the expertise of personnel involved in claims review, negotiation and
management will allow project and general management teams to be more effective
·
Disputes
should be reduced and those that still exist should be settled more quickly,
with less cost, delay and disruption
·
Obtain
a better understanding of alternative dispute resolution processes will allow
the correct technique to be chosen that is most effective in relation to the
particular dispute
·
Obtain
a better understanding of legal and practical issues will allow the more
effective management of external legal and other resources
·
Skills
learned on the training session will allow negotiations to be conducted with
more confidence, and with the ability to deal with issues quickly and with
certainty, thus reducing the time taken to bring negotiations to a conclusion
·
Non-lawyers
will find it easier to instruct and work with specialist lawyer colleagues,
improving the performance of both parties
·
Claim
and dispute avoidance skills will be enhanced, as will the ability to manage
such issues as do arise in an effective manner
PROGRAMME OUTLINE
|
DAY 1 -
HOW
CLAIMS AND COUNTER CLAIMS ARISE
·
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
o
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
o
Obligation
to perform work
o
Standards
o
Programme
§
Acceleration
o
Variations
o
Extension
of time
o
Force
majeure
|
|
DAY 2 -
TYPES OF
CLAIMS AND COUNTER CLAIMS
·
Types
of claims, in construction and other areas – and their distinctive features
·
Re-measure
disputes
·
Variations
– disputes on valuation
·
Variations
– disputes as to whether there is change
·
Breaches
of contract
·
Quality
of workmanship
·
Re-work
·
Rejection
of goods
·
Full
rejection
·
Partial
rejection
·
Liquidated
damages and penalties
·
Warranty
claims
·
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 AND COUNTER CLAIMS
·
Requirements
for claim presentation
o
Notices
o
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?
§
Mirror negotiation/red teams
o
Negotiating
"without prejudice”
o
Making
offers
o
Compromise
o
Bargaining
·
Interest-based
negotiations
o
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
§
Issues with evidence and
production of documents
·
Differences
between alternative dispute resolution methods
o
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 -
FINAL DAY
·
Ethical
concerns
o
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
o
Avoiding
claims and counter claims
o
Avoiding
disputes
o
Avoiding
litigation and arbitration
·
Practical
application of techniques
o
Opportunities
to role play a few straightforward negotiation scenarios involving typical
contractual claims, counter claims and disputes
·
Final
questions and wrap-up
|
