ARBITRATION
Arbitration is one of the most frequently used methods for resolving disputes in infrastructure contracts. Specific rules that are either pre-established in the contract or governed by the regulations of a particular Arbitration Chamber chosen by the parties must be followed.
Our participation may be as one of the Co-Arbitrators who make up the Arbitration Tribunal, as a Technical Assistant to the Party, as a Technical Witness or as an Expert to be appointed by the Arbitration Tribunal.
Party’s Technical Assistant
We assist the lawyers hired by the Party in the preliminary analysis of contractual documentation, the preparation of evidence to support the claimed damages, and the drafting of technical texts to be submitted to the Arbitral Tribunal.
In Engineering Expert Evaluations, we can act as the Party's Technical Assistant. We monitor the work carried out by the Expert appointed by the Tribunal and issue a Technical Opinion that may concur, partially diverge, or fully diverge.
Technical Witness
This role involves preparing Engineering Technical Opinions to be submitted to the Arbitral Tribunal, addressing issues such as project delays (forensic schedule analysis), cost variations, and other technical and contractual matters. In these Opinions, the Consultancy analyzes the events and provides its technical viewpoint.
We participate in hearings with the Arbitral Tribunal to provide answers or clarify specific technical aspects.
Expert Appointed by the Arbitral Tribunal
When appointed as Experts by the Arbitral Tribunal, our role involves preparing an Engineering Expert Report, analyzing contractual aspects, particularly regarding the fulfillment of obligations by the Parties and the assessment of whether the conditions established at the time of contracting have been maintained.
This assessment may cover topics related to project planning, especially the fulfillment of the contractual schedule or the need for its revision due to factors beyond the Party's control. The analysis may also address the occurrence of additional costs not contemplated in the contract.
Co-Arbitrator
If one of the Parties chooses to nominate an engineer with knowledge and experience in infrastructure contracts, provided that the Tribunal consists of three arbitrators, we can be nominated as Co-Arbitrators by that Party.
For the nomination to be accepted, it is essential that there is no – and has not been in the recent past – any relationship or previous or ongoing service provision by our consultancy with the Parties, in order to preserve the impartiality and independence required for acting as an arbitrator.
DISPUTE BOARD
An alternative method of conflict resolution widely used in international contracts and increasingly being adopted in infrastructure contracts in Brazil.
For it to be established, there must be a provision in the contract between the Parties, which should define its rules or link it to an existing regulation.
Typically, two of its members are appointed by the Parties, who must then appoint a third member. Once the appointments are confirmed, the Dispute Board (or Conflict Resolution Board) should periodically meet and visit the construction site to monitor the progress of the work.
If any controversy arises during the execution of the contract, the Party may request the Board to evaluate and give its opinion on the matter. The manner in which the Dispute Board issues its opinion must be pre-determined in the contract and can be as follows:
- Dispute Review Board (DRB): The Board issues recommendations related to the disputes or controversial topics submitted to it, which may be voluntarily accepted by the Parties.
- Dispute Adjudication Board (DAB): The Parties must comply with the decisions issued by the Board. If a Party is dissatisfied with the Board's decision, it must challenge it by requesting Arbitration.
- Combined Dispute Board (CDB): The Board can issue recommendations or, if agreed upon by the Parties, issue decisions.
If a Party wishes to submit a controversy to the Dispute Board, it may do so during the Board's meetings and visits to the construction site or by requesting an extraordinary meeting. For this, the Party must prepare the material related to the controversy and present it to the Board, which will evaluate it and issue an opinion.
Party’s Technical Assistant
Our role can involve preparing the arguments to be submitted to the Board, as well as preparing the supporting documentation that must accompany them.
Member of the Dispute Board
For the nomination to be accepted, it is essential that there has been no prior service provision by the Consultancy to the Parties, in order to preserve the impartiality and independence required for acting as a member of the Dispute Board.
MEDIATION
An important method of conflict resolution in which the Parties play a fundamental role in shaping the paths to be followed in seeking an understanding, conveying their main interests to the Mediator.
The Mediator must identify possible areas of common interest and evaluate alternatives to be developed, even if they were not anticipated or conveyed by the Parties.
Through joint sessions, the Mediator will become acquainted with the problems and disputes to be resolved. Later, in separate sessions with each Party, the Mediator will seek to understand their respective interests.
A key characteristic of the process is confidentiality. If one Party wishes that certain information or even some of its interests not be revealed to the other Party, it can request the Mediator to keep them confidential.
In this process, the Mediator's role is limited to acting as a facilitator, without offering opinions, taking sides, or advising and making recommendations about what could be done or the potential chances of success in a subsequent dispute.
The Parties have the crucial decision-making role, being able to agree on the solution or even withdraw from the process if the results are not satisfactory.
In Mediation, the consultancy’s involvement can be solely as the Mediator.
CONTRACT REVISION
This refers to a request for the review of an infrastructure contract when one of the conditions established in it can no longer fulfilled by the other Party, or when conditions are altered by an external factor beyond the Parties’ control.
As a rule, changes to the contracted conditions imply a review of the contractual deadline and/or price.
In terms of deadlines, it is necessary to evaluate the project planning, especially whether the contractual schedule can be maintained by increasing labor and equipment resources, or whether a revision is necessary due to factors beyond the Party’s control.
In both cases, it is necessary to assess the occurrence of additional costs not included in the contract, whether due to the mobilization of new resources to maintain the original deadline, or due to the extension of the management and supervision structure’s stay because of the extended deadline.
The Consultancy assists in analyzing the contractual documentation generated during the contract's execution, interpreting it, and preparing the evidence of damages to be claimed by the Party. It can also take on the drafting of the request for the review of the conditions established in the contract.
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