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Owners
Make site available Owner-supplied materials Design responsibility Timely approvals Not to interfere with method of execution Owner supplied facilities Issue change orders Duty to disclose superior knowledge Owners discretion exercised reasonably
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Bank Prepare design, specifications and drawings Prepare bid documents Prepare cost estimate Assist in procurements Oversee execution and maybe inspection
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Contractors
Build the project according to specs, time, budgets Comply with laws and regulations

If a subcontractor makes a mistake in its tender and this is included as part of the contractors submission, then:
The subcontractor is only obligated to perform the work if a written quote was provided b) The contractor is not obligated to perform the work c) The subcontractor is not obligated to perform the work d) The subcontractor is obligated to perform the work. a)

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Did not have an absolute and unfettered discretion Cannot accept a non-compliant bidder Cannot award on basis of undisclosed criteria Cannot bid shop

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Can only accept a compliant tender But which compliant tender? Is a tender that best meets the criteria contained in the tender call? Can consider:

Expressed terms Implied terms

x to determine the intentions of the parties

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Treat all bidders equally Bid should be submitted on time Contractor cannot withdraw bid Award to lowest compliant bidder Describe selection procedures Subcontractor tenders irrevocable

ENFORCEABILITY The law will enforce the provision of a valid contract; the law will not intervene to impose more favourable contract terms CHANGES An existing contract can be altered by mutual agreement, providing it is within the framework of the existing contract

Expressed Terms
The conditions which are written in the contract

Implied Terms
Valid conditions which are not explicitly stated Often rely on established customs and practice Obvious terms, which should reasonably be applied e.g. contract to build staircase implies conformance to appropriate building code
(G. Ford Homes Ltd. v. Draft Masonry (York) Co. Ltd., 43 O.R. (2d) 401)

BREACH OF CONTRACT ` This occurs when either party fails to comply with their respective obligations
Owners obligation to pay for work done Contractors duty to perform the work Any other obligation contained in the contract document either expressly or implied
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Does not enable injured party to avoid their own obligations

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FUNDAMENTAL BREACH
Where the breach is so major and fundamental as to go to the root of the contract Only if a breach is fundamental can the contract be rescinded

x Contractor providing unsuitable system for its purposes x Failure of a machine to achieve the promised level of performance
Disclaimer clause would not protect the vendor

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DAMAGES
A non-defaulting party is entitled to damages incurred if it can be established that: 1. There has been a breach of contract 2. The party has suffered a loss 3. The loss is as a result of the breach Purpose of damages is to return the injured party to the position it would be in if the breach had not occurred i.e., damages are what is reasonably contemplated or agreed at the time the contract is formed. Duty to mitigate
x The injured party must minimize the damages suffered
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DIRECT DAMAGES
Losses directly suffered as a result of the breach

INDIRECT DAMAGES
Losses consequential to the breach Must have been reasonably foreseeable when the contract was contemplated Liquidated damage clauses must be genuine estimates of potential losses Penalty payments not enforceable Liability limiting clauses enforceable
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QUANTUM MERUIT
As much as one reasonably earned or deserved A reasonable payment made to cover the cost of work performed Usually applies if no contract exists, or if contract is unjustifiably terminated

SUBSTANTIAL COMPLIANCE
If a party substantially complies with the terms of a contract, it is entitled to be paid the contract price less the cost of any non-compliance Minor deficiencies only
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Process whereby parties agree to settle the dispute through a third party nominated with mutual consent.

ARBITRATION The Arbitrators are appointed according to Arbitration clause/Arbitration Agreement. As a rule, if the parties do not agree for sole arbitrator then each party appoints one arbitrator and party arbitrators agree upon on presiding arbitrator.

The Civil Code procedure (1908) and Evidence Act (1872) are not applicable. Adherence to the principles of natural justice. Parties to the reference are free to agree on the procedure in absence of any agreement as between the parties. The Arbitral Tribunal will finalize the Arbitral Procedure. But it may be noted that such procedure must not be contrary with Section 20, 22, 23, 24, 25 and 26 of the Arbitration and Conciliation Act 1996.

 Non-Fixation of time for filing claims Failure to appoint arbitrator early Appointing arbitrator from Non-related field Late completion of pleadings Holding Arbitration hearings for short durations Liberal grant of adjournments Payment of fees to arbitrators on daily basis Lack of training to arbitrators Ignoring stipulations of agreement and Challenging award in routine

Initial stage of the procedure Once a dispute has arisen and the Arbitral Tribunal have been setup, appropriate procedure should be established to an efficient resolution of the dispute, with the consent of the parties. An early pre-hearing of the Arbitral Tribunal with the parties is very useful for early settlement and in the meeting they should direct the parties for submission of following: ` Statement of Claim; ` Statement of Defence for Counter-Claim, if any; ` Reply to the Counter-Claim, if any; ` Directions to be given with regard to inspection of documents relied and inspection of property.

PLACE OF ARBITRATION
The Arbitration proceedings shall be held at such place or places as agreed by parties and consented by Arbitral Tribunal.

LANGUAUGE OF ARBITRATION
The parties and Arbitrators may decide the language as per there choice, to be used in Arbitral proceedings. (Preferably English Language.)

(A) Statement of claim is to Incorporate: ` Facts supporting the claim; ` Points at issue; ` Relief or remedy sought. (B) The statement of defence has to Incorporate: ` The defence in respect of each of the claim made in the statement of claim. ` Any other information/statement rebutting the claim. ` These requirements are to be complied with by the parties unless the parties have otherwise agreed as to the required elements of the above statements.

Respondent may make a Counter-Claim against the Claimant provided Counter-Claim arises in the same transaction as of original claim along with all documents and information and the Claimant may, within directed time submit, a statement in reply to the Counter-Claim. Copy of the reply of the Claimant to the Counter-Claim and all appended documents, if any, shall be sent to the Respondent for information

 Issue Simplification: Admission of Evidence: Controlling the Order and Managing the Testimony: Expert Witnesses: Bifurcation of issues: Receipt of Documentary evidence: Encouraging Settlement: Hearing & Written Proceeding The first hearing of the Arbitral Tribunal should be convened within 15 days

of the receipt of the complete reply of the respondent the Arbitrators should convince the parties for the proposed time schedule for the proceedings. Arguments preferably should be heard within 15 days of the completion of evidence, to be followed by submission of written arguments, if any. Adjournments of duly fixed hearing should not be granted except for unavoidable reasons which should be spelt out in the adjournment order. A standard format for the PRELIMANARY and LAST meeting is presented for your convenience, this may be amended as requirement for each case.

On completion of hearing the Arbitral Tribunal will give last opportunity if they wish to ADD anything, if not hearing will be completed reference will be closed for making the award. Claimant will be directed to furnish desired stamp paper and the cost of stamps will be borne equally by both the parties. The Arbitrator will make the Award within 15 days from the date of completion of hearing.

No award shall be made by the Arbitral Tribunal unless the case of the party applying for arbitration has been brought to the notice of the other party and until after lapse of such specified time within which he has been asked to submit his defence statement. Whenever there is more than one arbitrator, the award of the majority shall prevail and be taken as the decision of Arbitral Tribunal. Failing a majority, the Presiding Arbitrator of the Arbitral Tribunal alone shall make the award. The Arbitral award shall state its date and place of Arbitration. Should the parties arrive at a settlement of the dispute by common agreement is genuine and not to defeat the purpose of any law, the Arbitral Tribunal shall render an award as per agreement of the parties. Otherwise, the Arbitral Tribunal shall make the award on the basis of the documents, evidence, etc. filed before it by the parties. The Arbitral Tribunal shall make the award as expeditiously as possible. The Arbitral Award shall state the reasons upon which it is based. A Standard format for AWARD is presented just as a guideline and same can be amended as per requirement of each case.

THANK YOU