Published on March 4, 2014
MEASURES TO REDUCE DISPUTE IN PROJECTS
Programme on Emerging Trends in Contract Management & Dispute Resolution.
Maj.Gen Nilendra Kumar Director, Amity Law School & Dean, Faculty of Law Amity University
What is a Project? A project in business is typically defined as a collaborative enterprise.
It may also be termed as a temporary endeavor undertaken to create a unique product, service or result.
Examples 1. Project for construction of new key location plan. 2. Married accommodation project. 3. Project to augment water supply. 4. Building of new hospital.
What is a dispute?
Dispute means A quarrel, controversy or an angry altercation.
Differing claims or divergent perceptions.
Why do the disputes take place?
What leads to disputes or in other words the causes for disputes?
COMMON CAUSES 1. 2. 3. 4. Trade Union rivalry. Labour unrest Legal intervention Management of funds resulting in shortage
5. Delay in obtaining regulatory clearances 6. Land acquisition problems
Reasons for delayed clearances 1. 2. 3. 4. Environmental Security Safety Overriding authority of other agencies or departments
Nine categories of delay
Delay at project level Original contracts duration is too short Legal dispute between various parties Ineffective delay penalties
Owner Group 1. Delay in progress due to payments by owner 2. Delay to furnish and deliver the site to the contractor by the owner
Example In fighting amongst co-owners of land
Contractor Group 1. Difficulties in financing project by contractor 2. Conflicts among subcontractors engaged in execution of the project 3. Re-work due to errors during construction
Consultant Group 1. Delay in performing inspection and testing 2. Delay in approving major changes in the scope of work by consultant
Example 1. Remove plinth protection 2. Steel door frames instead of teak wood
Design Group 1. Mistakes and discrepancies in design documents 2. Delay in producing design documents
May be due to rivalry or lack of adequate accountability
Material Group 1. Shortage of construction material in market 2. Changes in material types and specifications during the construction
May be shortages in steel, cement, bricks or sanitary fittings
Equipment Group 1. Equipment break down 2. Equipment shortage
Labour Group 1. Shortage of labour 2. Unqualified work force 3. Low productivity level of workers
External Group 1. Effects of subsurface conditioning (e.g. soil, high water table) 2. Delay in obtaining municipal permits 3. Hot weather effects on construction activities
Effect of a dispute
Dispute may lead to a lock out
LOCK OUT A lockout is a temporary work stoppage or denial of employment during the course of a dispute. It is initiated by the management of a company.
How to resolve the dispute?
OVER ALL OBJECTIVE To end the dispute make efforts to remove or reduce tension or conflict.
A dispute mechanism is a structured process that addresses disputes between two or more parties.
Dispute mechanism offers an effective tool for establishing communication channels between the parties.
Call the other side. At the first stage, get into a dialogue. Talk it cover. Give a patient hearing.
Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve points of difference to work out an agreement upon course of action.
However, negotiations may not always succeed to resolve the dispute.
EXAMPLES Singur Tata Nano Controversy. The land acquisition controversy during 2008.
Maruti Suzuki industrial unrest at Manesar, Haryana during Oct 2011
KUDANKULAM NUCLEAR POWER PLANT Protest by thousands of persons against the plant fearing a Fukushima like disaster.
TATA MOTORS Forced to abandon their project in West Bengal.
CONSTRUCTION PROJECTS Judicial intervention on account of low payments for land acquired in Greater Noida.
As of January 1,2013 of the total 566 infrastructure projects in India, 276 were delayed. The estimated cost of these projects was above Rs 150 crores.
Causes for the project delayed was due to green clearances and other reasons.
The list of delayed infrastructure projects include the $90 billion Delhi-Mumbai industrial corridor and the $12 billion Posco Steel Project.
TIME & COST OVERRUNS IN DRDO PROJECTS Costs have gone up from an original estimate of Rs 3,300 crores to over Rs. 5,789 crores.
DISPUTE RESOLUTION METHODS 1. Judicial 2. Extra judicial
MEASURES TO REDUCE DISPUTES 1. Anticipate and seek all regulatory clearances. 2. Forecast realistic financial implications and arrange funds. 3. Strict adherence to environmental norms.
1. Establish and maintain cordinal labour relations. 2. Effective use of ADR to sort out differences. 3. Vigilant defence of litigation.
OTHER EFFECTIVE TOOLS 1. Periodic reviews. 2. Web based monitoring system.
Prepare for the worst case scenario. Keep a safety time.
Education and training of engineers
Measures initiated by the Prime Minister of India during June 2012
Setting up of an investment tracking system. This will review projects periodically to ensure that issues are quickly identified and resolved.
Public sector projects with an investment of Rs 10 billion or more will be monitored by National Manufacture Competitive Council.
Judicial Method 1. 2. 3. 4. Judicial Recourse Arbitration Mediation Lok Adalats
Arbitration It is a technique for the resolution of disputes outside the courts, where the parties to a dispute refer it, to one or more persons (the arbitrators) by whose decisions they agree to be bound.
APPLICABLE STATUTE The Arbitration and Conciliation Act, 1996
Based on UNCITRAL Model Law on international commercial arbitration and conciliation.
The process of arbitration can start only if there exists a valid arbitration agreement between the parties prior to the emergence of the dispute.
Arbitration can be either voluntary or mandatory.
Mediation A settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their agreement.
A mediation has often been defined as assisted negotiation.
The mediator’s primary role is to act as a neutral third party who facilitates discussion between the parties.
Mediation differs from arbitration in which the third party (arbitrator) acts much like a Judge but in an out ofcourt less formal setting but does not actively participate in the discussion.
Advantages of Mediation Cost of litigation much less Confidentiality Control Compliance Mutuality Support
CONCILIATION Conciliation is an ADR process whereby the parties to a dispute use a conciliator who meets with the parties separately in an attempt to resolve their differences.
It is a less formal form of arbitration
Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed.
If a party rejects an offer to conciliate, there can be conciliation.
PRINCIPLES 1. 2. 3. 4. Non-adversial nature of proceedings Voluntary nature of process Flexible procedure Decisions are recommendatory
LOK ADALAT 1. ‘Lok Adalat’ means people’s court. 2. There is no court fee; and no rigid procedural requirements. 3. Pending cases in regular courts can be transferred to a Lok Adalat, if both the parties agree.
4. The focus on ‘Lok Adalat’ is on compromise. When no compromise is reached, the matter goes back to the court. 5. Every ‘Lok Adalat’ is deemed to be a civil court.
ADVANTAGE OF TIMELY COMPLETION OF PROJECTS L&T ‘s Q2 net up 42.5% on completion of projects.
CONCLUSION Timely completion of projects with optimal use of resources not only influences the profitability of the company but also gives it competitive advantage.
The process of dialogue mutual accommodation and a positive approach would contribute to dispute resolution.
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