Master universitari (II livello) / Contract, claim and delay management in construction works

Introduction to the project LCA

Introducing the students to the need for a proper management of the Project and to the importance of contract management, delay analysis and claim management. An open link with the successive phase of the litigation to be left.

Introduction to the fundamentals of common law

Introducing the students to the fundamental principles of Common Law with particular reference to those concepts which are needed to properly manage the contracts and the claims. The students will learn:
- The geography and a brief history of Common Law
- When is a contract formed? The key elements for an enforceable contract
- Offer or invitation to negotiate? What is an invitation to treat?
- Incorporating terms into a contract: offers
- Incorporating terms into a contract: battle of the forms
- Certainty of terms
- Pre-contract documents: Letters of intent, memoranda of understanding, heads of agreement, term sheets, and heads of terms
- Documents labelled "subject to contract”
- Oral contracts
- Written contracts and the parol evidence rule
- Contract Validity
- Termination of a contract
- Intentional torts
- Nuisance
- Contractual liability for professional negligence, the scope of the professional's contractual duty

Introduction to the fundamentals of civil law

Introducing the students to the fundamental principles of Civil Law with particular reference to those concepts which are needed to properly manage the contracts and the claims. The students will learn:
- Definition of sources of law
- Hierarchy of sources under Italian law
- The Italian Constitution and the law making process
- The European sources of law: (i) Treaties, (ii) Regulations, (iii) Directives
- Statutes and equal ranking provisions
- The Civil Code
- International law
- Law effectiveness

Construction contract civil law

In-depth analysis of the Construction Contract (“Appalto”) for private works. For comparative reasons, reference will be made to the public works regulations under Italian Law, if needed.
The students will learn:
- The construction contract as a typical contract in the Italian Civil Code: definitions and contents.
- Requirements. Validity. The subjects of the construction contract.
- Legal status. Comparison with other contracts.
- Compensation and price adjustments in construction contracts.
- Contract performance: materials, subcontract, prerogatives of the parties.
- Contract performance: surveillance, variations, completion.
- Contract performance: impossibility of performance, defects and defects liability.
- Construction contract: termination and other contract events.
- Cooperation among businesses: JVA and related agreements.
- Project contract as a tool to manage risk.
- World legal systems and general contract formation rules.
- Project contract: essential clauses.
- Project contract: liability clauses.
- Project contract: extra-contractual liability.
- Project contract: defects and warranties.
- Project contract: disruptions.
- Project contract: dispute resolution.

Contracts by international standards (FIDIC, JCT, NEC, AIA)

A quick introduction to the use of the forms and the main difficulties deriving from using them in a Civil Law or in a Common Law jurisdiction. The students will learn:
FIDIC Contracts:
- What is FIDIC?
- History of FIDIC Conditions
- The main FIDIC standard forms
- Common structure
- Salient features of Red and Pink Books
- Key Differences- Yellow and Silver Books
- 2017 Second Editions
- Some difficulties of use in common law and civil law jurisdictions
JCT Contracts:
- JCT 2016
- History of the contract form
- Background and related contracts
- Why JCT
- Spread of the JCT form and use of it in the UK and internationally
NEC Contracts:
- Introduction to NEC
- Main Forms (A to E) and Professional Services Contract (A, C & E)
- Core Conditions
- Secondary Options
- X and Y provisions
- Contract Data

Types of projects and works

In this unit the students will learn:
- Project definitions and types of contracts: E.P.C., Service, Lump Sum, Reimbursable, Semi-Reimbursable
- Main elements of the contract & contractual documentation (general conditions, special conditions)
- Overview of the main guarantees and liabilities
- Contractual structures and kind of partnership: JV, Consortium, Nominated Sub Contractor
- Analysis of contractual clauses regarding the different types of contracts analyzed
- An introduction to the principles of claim management
- Case studies

The main stakeholders

The students will have the chance to listen to and to meet with:
- Nicola Di Pietro, Department Procurement Adviser, Projects Directorate, EUROPEAN INVESTMENT BANK
- Marco Padovan, Founder, STUDIO LEGALE PADOVAN
- Simone Arena, Foreign Legal Department, IMPRESA PIZZAROTTI & C SPA
- Vinicio Fasciani, General Counsel, SALINI-IMPREGILO SPA
- Gianluca Buoro, General Counsel, DANIELI AUTOMATION SPA
- Angelo Bianchi, PMP, Independent Consultant, Public Procurement Specialist
- Franco Lusuriello, Managing Director Design & Construction BUILDING ENERGY SPA
- Francesco Fava, Technical Director, CONTECO CHECK SRL
- Sauro Mostarda, Head of Operations, SOLAR VENTURES SRL

Introduction to contract management for FIDIC contracts

This Course will describe in detail all aspects of the FIDIC Contracts which are relevant for contract management. It will be a “hands-on approach” on real cases with professional of international experience. During this course certain aspects of risk management will be illustrated.
The students will learn:
- Generalities for all FIDIC models of conditions of contract.
- Focus on FIDIC model contracts: the Rainbow suite, 1999 & 2017 editions, contract conditions, choice of the model.
- Procurement rules, tender preparation, pre-qualification, post-qualification.
- The parties and the engineer, roles and responsabilities.
- FIDIC clauses 1, 2, 3: definitions, the employer, the engineer.
- FIDIC clause 4: the contractor.
- FIDIC clause 5: Red Book vs. Yellow and Silver Book.
- FIDIC clause 6: staff and labour.
- FIDIC clause 7: plant material and workmanship.
- FIDIC clause 8: commencement, delays, and suspensions. The programme.
- FIDIC clause 10: employer's taking over.
- FIDIC clause 11: defects liability.

Introduction to claim management for FIDIC contracts

This unit will describe in detail all the aspects of FIDIC contracts which are relevant for claim management. It will be a "hands-on approach" with real cases shown and commented by professional of international experience.
The students will learn:
- Procurement considerations
- Contract selection and risk allocation
- Engineer duties in relation to claims FIDIC 1999 & FIDIC 2017
- Notices in relation to claims FIDIC 1999 & FIDIC 2017
- Time bar in relation to claims FIDIC 1999 & FIDIC 2017
- Provisions in Clauses 1 (General) and 2 (The Emplyer) that are frequently involved in claims
- Contentious issues in relation to Engineer's instructions and determinations
- Provisions in Clause 4 (The Contractor) that are frequently involved in claims
- Commencement and Time for Completion – Sub-Clauses 8.1, 8.2 and 8.3
- Rates of Progress and Delay Damages - Sub-Clauses 8.6 and 8.7
- Employer’s Taking Over the Works - Clauses 9, 10, 11, and 12 (DB and EPC), Variations: Clause 13
- The payment mechanism under FIDIC contracts and its management, rights and obligations of the parties under Clause 14
- Employer’s Termination of the Contract – Generalities on Clause 15
- Suspension and Termination by Contractor – Generalities on Clause 16
- Generalities on Clauses 17 (Risk and responsibilities) and 18 (Insurance)
- Force Majeure – Generalities on Clause 19
- Claim Disputes and Arbitration, Fidic MDB clause 20, Fidic 2017 Clauses 20 & 21
- Dispute Boards, History, Three Party Agreement, DAB General Conditions
- DAB Procedural Rules, DAB additional Procedures

Introduction to delay analysis

This unit will take the students through the complex matter of delay analysis in international projects, the various methodologies and the forensic use of delay analysis.
The students will learn:
- Types of excusable delay
- Types of non-excusable delay
- Productivity
- Float ownership
- Importance of the baselines and updates
- Non-CPM schedules, including: Just in Time, Lean Construction, LoB and Gantt
- General FSA concepts, adjudicator perspective
- Planning and scheduling basics
- General FSA concepts, practice in Italy
- FSA methods overview: basic considerations in all FSA methods
- As-Planned vs As-Built: how does it work
- CPA: how does it work
- TIA: how does it work
- CAB: how does it work
- Concurrent Delay and Special Issues
- Why different methods yield different results

Determination of the quantum

This unit aims at detailing the various elements of cost which must be taken into account when determining the quantum in a claim.
The students will learn:
- Introduction to tendering
- Tender priming with reference to claim evaluation
- Claim & VO management
- Total cost claims
- Modified total cost claims
- Productivity analysis
- Composition of overheads costs
- Case study of overheads costs

From claim to dispute, dispute boards, arbitration

The students will be presented with the major topics on administered arbitrations and on ad hoc arbitrations. As in the construction industry the most frequent is the ICC one, focus will be placed on it without forgetting the ICSID arbitration and the UNCITRAL rules.
The students will learn:
- Management of claims. Analysis of employer and contractor’s risk events that give rise to claims.
Causes and effects.
- The dispute resolution mechanism (mainly FIDIC forms): Engineer’s determination, DAB, amicable settlement, arbitration.
- Dispute boards: origin and development, dispute avoidance and dispute resolution roles, practice and procedure.
- The FIDIC context: from engineer’s decisions to dispute board. The reasons why dispute boards replaced engineers as dispute resolvers.
- The Italian experience with dispute boards. Mechanisms currently in place or under consideration to resolve construction disputes.
- The binding nature of dispute board decisions.
- Overview of the UK adjudication under the Housing Grants, Construction and Regeneration Act 1996.
- Treatment of adjudicators’ decisions by UK courts for enforcement purposes.
- Status of dispute boards’ decisions in international construction contracts under FIDIC conditions.
- Cases on the enforcement of dispute board’s decisions, from the arbitration case that paved the way for the current enforcement trend.
- Principles of international arbitration (commercial vs investor/state arbitration, substantive and procedural law, New York convention and the model law (UNCITRAL)).
- The arbitration context: jurisdictional, procedural and substantive issues in construction disputes.
The arbitration agreement.
- Multi-tiered arbitration clauses.
Arbitral tribunal and state courts in the conduct of arbitration proceedings.
- Typical procedural issues (briefs, written and oral evidence, document production, hearings and witness examination).
- Substantive issues: role of the contract and of the applicable substantive law.

Arbitration details

The students will learn:
- The arbitration agreement
Do’s and don’ts when drafting arbitration clauses
The seat of arbitration
The language of the proceedings
The applicable substantive law
- Institutional and Ad Hoc arbitration
Definitions and features
Main differences
The arbitration system of the major arbitral institutions
- CAM Rules of Arbitration
Main features
- ICC Rules of Arbitration
Uncitral Arbitration Rules
Main features
- The Arbitral Tribunal
(number, appointment, independence and impartiality, role, powers)
- US arbitration
- US arbitration vs. US Court litigation
- Evidence in international arbitration (documentary evidence, witness statements/expert reports, examination of witnesses and experts)
- THE RELATIONSHIP BETWEEN COUNSEL AND CLIENT: A. Counsel and client cooperation in preparing a construction arbitration case, B. Counsel and client cooperation in locating and managing documental evidence
- INVESTOR STATE ARBITRATION: The definition of protected «investment», the difference between «contractual claims» and «treaty claims», substantive protections afforded by investment laws and treaties, the dispute settlement mechanism, investor State Arbitration, the ICSID Convention, Investor-State arbitration in the Construction Sector

Case history