Guidelines to Good Practice in Construction Dispute Resolution
Contract Documents: If you’re responsible for the drafting and negotiation of the contract documents your input now will help avoid potential claims and failing which may give you the advantage in and future dispute resolution. Try to ensure that:
Contracts are drafted properly and comply with the applicable country law.
Record terms expressly, accurately and unambiguously.
State the governing law of the contract and jurisdiction. When doing so consider the most favourable jurisdiction for resolving the dispute this is especially relevant ii International contracts.
Specify the mechanism for resolving any disputes including the identification of the most favourable method of dispute resolution be it; mediation, expert determination, arbitration or litigation through the courts.
Include important clauses in the contract, for example: limitation of liability, entire agreement clause, termination provisions
Retain evidence in the form of contract negotiation minutes or similar documentation, accepted and endorsed by the parties to the contract.
Retain evidence in the form of documentation as this will be crucial in establishing arguments in any dispute. To this end it is encouraged that a comprehensive document retention policy is adopted and maintained which as a minimum will:
Help ensure procedures are followed by all staff;
Make senior management responsible for document retention enforcement and implementation;
Encourage implementation of electronic data organisation and retention in addition to hard copies;
Categorise documents and make retention periods clear for each category. Documents is a wide definition and period of retention will vary according to statues of the countries or jurisdiction involved; these statutes should be fully investigated and researched before establishing a document retention procedure in relation to a project. For most documents in Malaysia the period is six years.
Be a clear policy for the destruction of documents – documents not to be retained must be destroyed in accordance with the policy and not on a random basis, not only can this result is lost documentation it can also create suspicions if third parties are used to resolve disputes.
Help ensure electronic information is systematically archived by backing up.
Once a dispute arises it is important to immediately consider all the risks and carry out a plan to mitigate these together with early agreement on the course of action to be taken whether the dispute is instigated by you or otherwise. In many instances failure to address this will result in you losing at least part of your entitlement or make a defence that much more onerous if the other party is engaging more resources it what may appear in the first instant an unrealistic or unenforceable argument in a dispute. You should always consider and decide on:
Involvement of advisers at a very early stage;
Obtaining legal advice at an early stage on the merits of the dispute, the drafting of responses and notices, preservation of privileges, the correct interpretation and following of formalities and legal procedures, the presentation of evidence. Ensuring always that the selection of legal advisors is done taking account of their track record and expertise in the resolution of disputes relating to the specific subject matter;
The involvement of media consultants if the other party to the dispute or project itself is high-profile or sensitive such as the case with some prestigious project, projects in environmentally sensitive fields or projects which have a high public profile or are politically sensitive;
Establishment at an early stage what a “win” would be in respect of the dispute;
Notifying insurers as such notification would be considered privileged;
Get advice and research the courts as different jurisdictions have their own idiosyncrasies and customs.
Instigate documents control measures if not already practiced so that all documents relevant to the dispute are discoverable in the event of litigation, which means they must be ‘controlled’ as soon as the dispute arises;
Avoid the creation of unnecessary documents. Emails can be of a particular risk due to their informal nature so always consider in the event that a communication were a letter or memo and not an e-mail would the content be the same before sending such a communication. Avoid the circulation of internal e-mails/memos with impulsive judgments or comments and consider what a judge would interpret were he to read the document/comment. If in doubt, do not commit it to writing.
Enforcing a policy where original documents are not the subject of unnecessary comments as the judge will have the opportunity to read and consider these comments in the event of litigation.
Suspension of routine document destruction immediately to avoid accidental destruction of relevant documents. It is relevant also that the courts look of the destruction of potentially relevant documentation very seriously and the consequences can be the Court ruling that you have deliberately attempted to pervert the course of justice and strike out your claim of defence as the case maybe.
Preparing your case in the correct manner for hearing is vital to its ultimate success.
The management must be prepared to commit their time and attention to the matter for the duration of the dispute.
You need good key witnesses who can give straight and clear answers and tell the truth as they recall or understand.
Contemporaneous evidence is very important and should be fully indexed and prepared for any hearing
Evidence must be legitimately obtained
You need good experts and remember that they are ultimately there to assist the court with relevant expertise not to act in either your or your oppositions favour but to act independently.
Finally Dispute avoidance or amicable settlement should never be dismissed always consider this as an avenue to avoid the matter being settled by the courts. Settlement should be a priority regardless of the stage the dispute has reached, always keep lines of communication open and don’t be afraid of making the first move to resolving the issue amicably.