Energy and Infrastructure (Construction Projects)
One of the focus areas of the firm is the construction industry across all major sectors (Refining & Petrochemical, Power and Infrastructure). While many common legal, contractual and commercial principles apply across different sectors of the construction industry, a thorough understanding of the sector-specific legal, regulatory and commercial issues is required to develop the most appropriate contract documentation for a particular construction project.
Construction practice requires a high level of expertise and specialization for the effective handling of large, complex and high value projects, more so when such projects involve multi-national joint ventures or consortia. Such expertise and specialization involve in-depth knowledge of various procurement methods, pricing models and key project contracts such as engineering procurement construction (EPC), engineering procurement construction management (EPCM), and project management consultancy (PMC) contracts, umbrella agreements, process technology license agreements and tripartite agreements (TPA).
Construction industry usually refers to various internationally recognized model forms of contracts (e.g., FIDIC) for different types of construction projects; therefore, a thorough knowledge of various such model forms is important to decide the appropriate contracting structure to be used (and to develop bespoke contract documents when needed) with a view to making sure that risks, liabilities and responsibilities as well as rights, benefits and entitlements are properly allocated between the contracting parties. Market conditions also play a significant role in choosing the appropriate contracting strategy to be used in a construction project. Therefore, it may be more preferable to come up with bespoke contract documentation for a given project rather than relying entirely on model forms.EPC projects often involve multiple parties who are assuming various roles and responsibilities. Effectively managing the interfacing risks involved in such situations is a key factor for the success of an EPC project.
The construction industry is highly technology intensive, whether it involves open art technology or complex process technology. One of the key success-drivers of an EPC project is the success of the technology involved in it. Protecting the owners’ interests (e.g., indemnities and cure rights) and those of the licensors (e.g., protection of IPR) is a calculated balancing act.
For the smooth execution of a project involving the licensors, the establishment of an efficient tripartite arrangement that addresses the respective sensitivities and requirements of the parties involved (as well as the opportunities to be realized) is a key element for the successful execution of that project.
Claims and Disputes Management
Claims and disputes are a fact of life in the construction industry, driven by a variety of economic, technical and behavioral influences. Proper, effective and efficient drafting of construction contracts is very important (but often neglected) to reduce claims and disputes, and in the event of unavoidable disputes and claims, to offer contractual
certainty for the issues in dispute. It is also important to consider various fast track alternative dispute resolution (ADR) techniques that can be adopted to effectively manage claims and disputes.Managing disputes and claims in the life of a project is an on-going exercise and a critical business skill. This has to be handled efficiently, down the supply chain, by applying effective contractual, technical and project-management solutions, functional advices and contract-administration ideas at the appropriate time. In fact, the process begins at the very early stage of a project such as when an owner negotiates a bidder’s proposal or when a bidder negotiates the risks and liabilities in an owner’s tender or RFP (RFQ) with the ultimate aim of preventing or at least reducing disputes and claims.
Commercial Transactions and Compliance
The firm’s practice area includes consummating various commercial transactions and advising senior corporate management on commercial, regulatory and compliance issues.
Industrial site lease deeds, agreements related to utility supply, power distribution, feedstock and product supply, operations & maintenance, etc., are important commercial arrangements that parties enter into in setting up their industrial business units and it is important that these are well negotiated and drafted prior to their execution to prevent or reduce disputes and litigations.The firm well understands the nuances of agreements with respect to loan transactions, pre-bid, consortium or joint venture, MOUs/heads of terms, asset acquisition, shareholding, share purchase, share subscription, SLAs (service level agreements), franchise, partnership, agency, mediation and conciliation, arbitration, settlement, sale and purchase, employment and confidentiality.
Contracts related to IT and ITES are a specialized area for the firm. The firm recognizes the uniqueness of commercial agreements typical to IT & ITES such as
those dealing with software licensing, end-user licensing, supply of products and services (including training, maintenance and outsourcing), confidentiality and non-disclosure, and hardware warranties which take care of, among others, protection of the intellectual property rights (IPR) and orderly conveyance of IPR through internationally accepted mechanisms.