Among several forms of controversies solutions, the one that has been frequently used in Infrastructure Contracts is the Arbitration.
For that, it’s necessary to stipulate in contract the commitment of solving any controversies by Arbitration, and their own rules previously stipulated that must be followed or the Regulation of certain Chamber chosen by the Parties.
If there will be any controversy, the consultancy could act as one of the Co-Arbitrators that will constitute the Arbitral Tribunal as a Technical Party Assistant, as Expert Witness or as an Expert named by The Arbitral Tribunal.
The consultancy has been acting helping the contracted lawyers by the Party with the previous analysis of the contractual documentation and also preparing the documentation for the confirmed damages to be claimed by the Party. Eventually, the consultancy can undertake to do part of the written submissions, to be referred to the Arbitral Tribunal, when related to technical and specific Engineering subjects.
About the Civil Engineering Investigations, the acting can be done as a Technical Assistant, following the tasks achieved by the Expert named by the Tribunal, issuing a convergent, partially divergent or divergent technical Report.
In some cases it’s necessary the testimony of specialists in Arbitral Tribunal hearings, in order to clear up doubts or explain some specific technical aspects.
The consultancy has been acting in such hearings, participating as a Civil Engineering Expert Witness, especially about issues related to the Construction Planning, Schedule Delays and their consequences, or variations of the contemplated conditions in the construction contracts.
As an Expert named by the Arbitral Tribunal, the acting is done with the preparation of the Civil Engineering Technical Report, analyzing contractual aspects, mainly about the fulfillment of all duties by the Parties and about the assessment of the maintenance of the established conditions at the act of contracting.
Such assessment can contemplate subjects related to the Construction Planning, especially the fulfillment of the Contractual Schedule or the necessity of its revision due to excluding factors from the Party responsibility. The analysis can also be related to the incident of extra costs overruns not referred in contract.
If one of the Parties chooses to nominate a Civil Engineer with experience and knowledge at infrastructure contracts, and if the Tribunal is formed by 3 Arbitrators, the founding partner could be nominated as a Co-Arbitrator from this Party.
In order to make this nomination accepted, it’s indispensable that there is not or even there hadn’t been in any recent past, any relation among the consultancy or previous services rendered or present with the Parties, protecting then the impartiality and independence that it’s required for an Arbitrator acting.