Devise check-out procedures for documents, where you can keep track of project documentation at all times by developing a log-in/log-out system. If someone in the firm needs details from a file for any length of time, copies should be made and the originals returned to the project file.
When a dispute arises, a firm principal should take control of the project file. No one should be allowed access to the file until legal counsel has reviewed and copied all the documents.
While these steps require time and effort, benefits to your quality control program can be significant. Over my many years attending mediations, I know firsthand how impressed mediators are when design professionals can quickly produce documents to support their position, and how that can help to resolve a claim.
My risk management philosophy continues to evolve. Over time, I have come to appreciate the value of having a strong quality control program that addresses the filing and retrieval of project documentation. And again, be mindful that to have an effective quality control program, a firm must be proactive and communicate with their clients, document these communications and properly file the documentation.
GOING INTERNATIONAL WITH A PROJECT? PUT ARBITRATION IN YOUR CONTRACT
By Michael J. Bond, Esq.5 Copyright 2006
When it comes to design professionals selecting a forum for their disputes in the United States, most attorneys who represent architectural and engineering firms often recommend that design professionals do not agree in their contracts to submit disputes to binding arbitration. But when it comes to projects outside of the United States, it’s a whole different ball game.
The reasons for avoiding arbitration in the United States are numerous. Although there are some pros to arbitration, such as the architect or engineer (A/E) might have some control over the selection of the decision maker and the proceedings are usually private, in my experience the cons of arbitration outweigh the pros. Indeed, the effective loss of the right to appeal errors of law, the tendency of some arbitrators to “split the baby,” a relaxed approach to the rules of evidence and law governing these claims, and the lack of any real cost savings make resolution of disputes by the court process my preferred recommendation. All of that changes, however, with international projects.
On international projects, though – especially those built outside the UK, Canada, or Australia/New Zealand – arbitration is my preferred and recommended forum for dispute resolution for essentially two reasons. First, the parties gain some modest control over the process, the selection of decision maker, and the location of hearings, and thereby increase their chances of a truly neutral forum. This factor is especially valuable in those countries or regions where the rule of law or the independence of the judiciary are not well established. Second, unlike court judgments, arbitration awards are enforceable worldwide in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Known as the “New York Convention,” it was adopted in 1958 and is now recognized in at least 137 countries. And generally speaking, it permits a party to seek enforcement of an international arbitration award anywhere that assets can be located. There is no similar mechanism for the enforcement of court judgments internationally.
What follows is an introduction to the issues that should be considered when drafting an international arbitration clause.
A. Arbitration is three dimensional. International commercial arbitration usually implicates at least three separate legal regimes. First, the contract itself will be subject to one law, either that chosen by the parties or if not chosen, then determined by the arbitrators using choice of law principles. Second, the arbitral law of the seat or place of arbitration or lex arbitri will in the first instance govern issues such as the interpretation, validity and enforcement of the arbitration agreement, interim relief, discovery and appeals of awards. Many nations have adopted in whole or part the United Nations Commission on International Trade Law (UNCITRAL) Model Law adopted by the UN General Assembly in 1976. Third, if the parties have chosen an institution to administer their arbitration, then the institution’s Rules of Arbitration will govern the procedures that are used in the arbitration.
5 Michael Bond is an attorney with Gardner Bond Trabolsi PLLC in Seattle, WA. The law firm’s web site is: www.gardnerbond.com Mr. Bond’s e-mail address is: email@example.com