Construction Arbitration

This book has been conceived to address a particularly pressing aspect of disputes in construction projects. It provides a practical guide and follows a very systematic approach to dispute resolution through mediation, conciliation, and arbitration under construction contracts. It covers all aspects of the causes of delay, including coverage of delay analysis reports, the various disputes, and the arbitration process for satisfactory and faster resolution.

This book is based on issues relating to major EPC projects of process industries such as steel, petrochemical, power plants, etc. It also covers issues relating to the infrastructure sector in private and public sectors.

This book will be useful for persons involved in construction arbitration, lawyers, project professionals, arbitrators, students, and academicians.

The Present Publication is the 1st Edition, incorporating analysis of problems of the construction sector and their impact along with analysis of 10 case studies while attempting to cull out the necessary principles involved in the execution of the projects. The key features of this book are as follows:

• Delay Analysis Report — Project finalization & execution has also been briefly addressed, along with detailed description of possible reasons of conflicts and disputes in large projects. It also includes Delay Analysis Report ('DAR') detailing all the delays which take place in construction projects
• Preparation of Claims with Examples — Preparation of claims and counter claims has been elucidated (with examples) along-with organizing the evidence for construction arbitration
• Use of Alternate Dispute Resolution ('ADR') Mechanism — Use of Alternate Dispute Resolution ('ADR') mechanism, for dispute resolution has been discussed
• Case Studies — Case studies are provided that compare the project execution methodology, concerning private and public sectors and the outcomes of projects
• Simple & Lucid Presentation of Text — Technical, contractual & commercial reasons for delay in projects have been described in simple language, which can be understood by lawyers, arbitrators, and laymen working in the construction industry

The contents of the book are as follows:

• Impact of disputes in construction sector
• Ideal needs of successful project execution
• Overview of projects and construction sector in India
• Types of construction contracts – Traditional
• Projects execution in India – Status
• General process of finalization of EPC contract for large projects
• Stakeholders in EPC project
• Analysis and comparison of salient features of different EPC contracts
• Critical examination, comparison and review of major clauses of EPC project contracts
• Brutal global impact of COVID-19
• Force majeure in Indian projects due to COVID-19
• Project monitoring & control
• Pre-requisites for successful completion of an EPC project
• Case studies of project execution detailing the methodology of execution, elements of delay and potentialities of disputes in projects
• Conclusions drawn from the case studies of project execution
• Common clauses of delays in EPC projects
• Preparation of project Delay Reports
• Delay analyzing techniques in construction projects
• Delay in construction contracts – A Legal View
• Construction dispute resolution as per Alternate Dispute Resolution mechanism
• Settlement of construction dispute through Negotiation
• Settlement of construction dispute through Mediation
• Settlement of construction dispute through Conciliation
• Settlement of construction dispute through Arbitration
• Indian Arbitration and Conciliation (Amendment) Act, 2019 a reflection
• Claim in a construction project
• Need for evidence in construction arbitration

Reviewed by Justice Dipak Mishra | Former Chief Justice of India

“After reading the book, I am tempted to say that though it focuses on a very prosaic subject, yet there is “something” in it that makes it interesting for the readers. And any reader can find that “something” only after studying the book. It is a must read for the students, practitioners and academicians involved in the field. I so recommend as the author is consistently guided by the motto, “quality speaks for itself”.

The author’s intention is to assist and educate. I have deliberately used both the words because I am of the view that this book should be read by some with the vision of an Argus-eyed personality and some should study with humility. The author deals with many facets with admirable precision. One may consider his delineation with regard to the conception of delay. He has commandedly adverted to “Common Causes of delay in EPC Projects”. I am certain that anyone arguing a matter before a Tribunal or Court will be extremely benefitted.

The author’s case study has its own impact and reaffirms the old saying “Example is better than Precept”. He believes in the concept “successful project execution is more than a written piece of contract”. This statement by Dr. Saraswat deserves to be a quotation.”

Reviewed by Justice B.B. Srikrishna | Former Judge | Supreme Court of India

“Dr. S.B. Saraswat is a technocrat with extensive experience of four decades in public as well as private sector industries in India and abroad. He was actively involved in successful execution of many large projects in Steel, Power and Petroleum sectors. His long experience in their execution has exposed him to various kinds of disputes faced as client and as contractor. This book is the result of his rich experience of dispute resolution by arbitration in the construction industry and reflects his insights on aspects of delays, disputes & their resolution.

Apart from general discussion of the arbitral mechanics in such disputes, the book focusses on the nature of construction contracts, the likely pitfalls therein, the force majeure clauses in such contracts, project control and monitoring, common causes of delay in EPC contracts, delay analysis techniques, techniques of ADR, nature of claims, their submission and the evidence required to substantiate the claims in light of the legal provisions of the Arbitration and Conciliation Act, 1996 and other applicable laws.”

Reviewed by Justice Deepak Verma | Former Judge | Supreme Court of India

“This book by Dr. S.B. Saraswat encapsulates the following:

• The problems of the construction sector and their impact has been analyzed in detail.
• First it has been advised that disputes should be resolved mutually among stakeholders failing which mediation and conciliation should be adopted. Procedures for the same have been described in the book.
• It is a fact that large construction projects in India are invariably delayed due to a variety of reasons. This book contains all the possible reasons for the delay in the project. Further, the book also spells out an action plan to avoid such delays.
• The book has handled the delay analysis through various delay techniques normally adopted as a standard practice. Delay in the projects has been described in a comprehensible manner that can be easily understood by lawyers, arbitrators and laymen working in the construction industry.
• The book also analyses 10(ten) case studies while attempting to cull out the necessary principles involved in the execution of the projects.
• Preparation of claims has been dealt with in the book and explained with suitable examples.
• Utility of evidences to substantiate the claims have been incorporated.
• The book discusses ADR techniques like Negotiation, Mediation, Conciliation and Arbitration to resolve construction disputes.”

Reviewed by Justice A.K. Sikri | Former Judge | Supreme Court of India

“Understanding the need to have some authentic book to guide and help all the stakeholders, Dr. S.B. Saraswat has laboured to produce the book at hand which specifically takes care of issues relating to construction arbitration. The three major elements in this field as mentioned above, viz., delays in such projects, nature of disputes and the resolution thereof through arbitration are the themes which are very deftly articulated and presented in a manner which can easily be absorbed by the readers.

A distinguished feature of the book is that the scope is not confined to use of ADR mechanisms for dispute resolution (which includes mediation as well as arbitration), but contains an in-depth analysis into the causes leading to such disputes. This becomes important to ensure ‘Dispute Avoidance’, wherever possible. In case of disputes, the book acts as a helpful guide for the disputants in the manner in which claims should be preferred or the defences be offered. It also guides the stakeholders the manner in which evidence needs to be organised or supporting the claims or defending the claims.”