Our Practice Areas
Archeus Law has been successfully advising various state and private sector clients, including multinational clients, in the infrastructure and EPC space, in day-today contract management and pre-dispute advisory services to stakeholders across the spectrum such as contractors, employers, developers and other intermediaries.
I. Project Advisory & Contract Management
II. Dispute Resolution & Litigation
III. Mining and Exploration
IV. White Collar Crimes & Other Criminal Matters
V. International Project Management & Advisory Services
A. INDUSTRY SECTOR WORK:
- Commercial Contracting
- PPP and Concession-based-DBFOT Projects
- Traditional, Turnkey (design and build) and EPC Projects
- Thermal Power Plants and Co-Gen Plants
- Energy (Concession and Production sharing projects)
- Power Supply and Purchase Agreements as well as Offtaker Agreements
- Operation and Maintenance Agreements
- Plant Design and Build Projects
- Environmental Management
- General project performance control and supply chain advisory
B. FRONT-END PROJECT ADVISORY WORK:
- Contract Structuring
- Negotiation, Drafting, and Associated advisory work
- Contract Management
- Project feasibility and delay risk analysis
This comprises of a complete and holistic “tender-tocommissioning” scope of bid assessment, support, dayto-day advice on delivery controls and performance risks and preparation, “sense checks” and management of claims and defenses, emergency advisory involvement in the event of defaults and unforeseen disruptions, advising termination strategies and contractually regulated dispute resolution (namely, neutral evaluation, contractual adjudication, expert determination and DAB/ DRB tribunal hearings.
We also aid in the structuring of global cross-border and domestic corporate transactions including investment funding, mergers and acquisitions.
C. BACK-END REPRESENTATION, ADVOCACY & TRIBUNAL WORK:
- International arbitration, DAB/DRB, Mediation, Leading Counsel and Co-counsel roles
- Special Counsel (multi-jurisdictional representation limited to project-led technical and commercial issues)
- Sole and Party/Chair Arbitrator roles
- Advice on evidence, as well as on the merits of the claim/claims.
- Advice on contractual controls and the events of non-performance
- Advice and support on the preparation of the claim and associated submissions
- Advice and support on infrastructure contractual and (external or independent) alternative dispute resolutions
D. EXTERNAL LEGAL CONSULTANTS IN THE EPC SPACE:
Engineering Procurement and Construction (“EPC”) contracts are highly elaborate arrangements containing varied facets wherein the role of the contractor is significant towards the execution of projects.
The requirements of specialised, timely and hands-on legal services become critical due to the complexities and intricacies of the legal/regulatory regime and the peculiarities of the sector in general. Considering their nature, the requirement of expert legal services becomes vital.
The Archeus Law experience is one where such services are desirable for all stages of the project – from inception to completion and eventual discharge of the contracts. To enlarge upon this, we have broadly divided the EPC contractors’ works into three stages, discussing the positive role of the external legal consultants in each stage:
STAGE 1: PRE-CONTRACT
Sowing the seeds of success
Prior to the execution of the contract, Archeus plays an important role in assisting legal/contract departments in negotiating and finalising the framework of the contractual arrangements between the project
proponent/owner, as well as sub-contractors for various parts of the EPC contractors’ scope of work.
In India, there is jurisprudence relating to the interpretation of various aspects of contracts.
For instance:
- provisions relating to contractual milestones;
- provisions relating to contract price and/or taxation the rights and obligations of each party and the reciprocity of each parties’ obligations to the other;
- variations and extras;
- change in scope;
- dispute resolution mechanisms
Each of the aforementioned aspects, and many more, would be affected by the stipulations of Indian law – many of which may be unique and distinct from other jurisdictions. This is constantly evolving as well – for instance, interpretation of clauses related to changes in law, damages, restrictive covenants, seats of arbitration and governing laws etc. have undergone important changes in the last five (5) years (from 2022) and consequently, some of the ‘standard-form’ contracts presently in use by EPC contractors would require revision.
We have often observed that parties tend to either incorporate international standard-form contracts with only a few customisations, or adapt a form pressed upon by another party – usually the project proponent. However, such practices may not be in the best interests of the EPC contractor or, may result in ambiguities during the course of execution.
It is highly advisable for specialised legal practitioners, like Archeus, to be involved during the negotiation and finalisation of such arrangements to ensure that the interests of the EPC contractors are maintained, points of differences are resolved and vagueness is kept to a minimum.
Moreover, Archeus also plays a major role in advising EPC contractors towards the best mechanism to set-up their establishments for the project and to understand and negotiate the regulatory framework governing the same.
STAGE 2: DURING THE TERM OF THE CONTRACT
A “second pair of eyes” for smooth contract management & timely course correction
During the course of the execution of the work, an EPC contractor faces a variety of issues on a day-to-day basis related to the following:
- interpretation of the clauses of the contract or the sub-contracts
- issues arising out of changes in the scope of works, which may not be anticipated during the drafting of the contractual arrangements
- contractual defaults committed by a party or acts of prevention or omission
- issues related to legal/regulatory compliances
- disputes vis-a-vis the project proponent or subcontractors
Archeus Law assists EPC contractors as and when such issues arise in order to protect the best interests of the client. In our experience, such issues if handled incorrectly, may lead to escalation of disputes and thus our timely involvement evidently led to avoidance, or pre-emption of such potential areas of dispute. Rendering assistance for compliance-related issues would also help to avoid statutory liabilities.
Moreover, another area of assistance offered by Archeus Law has been the proper maintenance of site records, which are vital particularly during disputes.
Timely vetting and advice on site records, particularly correspondences, registers etc. assist in strengthening the case of a party in cases of disputes. Archeus Law prepares and vets the replies to all contentious
communications received by their clients from owners or sub-contractors, that arise during the course of the term of the contract. The comprehensive responses thus prepared, serve to fortify the case of the client in the short term as well as in cases of disputes that may arise at a later stage of the contract, wherein the stand taken by the client initially, always comes under close scrutiny.
Apart from these benefits, another major benefit to the client accrues in the form of initial advise from Archeus to determine the course in which the client’s dealing visa-vis the counterparty should follow.
To specify, if particular grounds are to be taken as against a particular counter-party, Archeus advises the client to conduct its business against that counterparty in a manner that will ensure that the grounds for future legal action or defence are firmly established right from the very inception of the issues, which would be evident from the site records.
Thus, the contract management services of Archeus Law directs focused and targeted work execution by the client.
Needless to state, the above also ensures that a substantial body of documentary evidence, in favour of the stand to be taken by the client is in place, if and when the dispute escalates.
Moreover, Archeus Law continues to advise the client on day-to-day contractual interpretation matters, which also ensures that the client’s actions are guided and informed by the powers and limitations arising from such interpretations.
As against statutory authorities, our clients have benefitted from our insights and experience of the legal/regulatory regimes and our assistance into the client’s project management issues also makes the task of representing the client before such holistic authorities easier.
In cases where the projects are affected by delays and other issues, Archeus Law advises and drafts remedial requisitions based on the best available records of the client in a timely manner, ensuring that extension requests and future claims as against employers get strengthened. Conversely, in cases where the client is to consider extension of time requests or requests for escalations, the firm provides the best possible legal remedies to ensure that no unwarranted advantage is taken by the counter party due to errors of omission/commission.
Archeus also works with a number of experts dealing with technical analysis of delays, as well as quantum experts, to ensure timely advice and strategising. In discharging its contract management services, the firm is best placed to assist the client in reacting swiftly to any unforeseen adverse events.
Finally, Archeus’ involvement with all aspects of the project execution, makes it uniquely placed to advise the client on the strengths and weaknesses of its case, in the event of dispute escalation.
STAGE 3: POST-EXECUTION
Protecting what is earned
Post execution, when parties to the contract seek to fulfil all pending obligations, it is Archeus Law’s endeavour to conclusively close the project without any liabilities against the client. However, invariably at this stage it is seen that project proponents seek to park-aside past issues until the work has been completed. This is the stage wherein disputes arise and Archeus Law has assisted its clients in:
- evaluating the basis of the claims of the EPC contractor and the counter-claims of the other parties from a legal perspective, including the strengths and weaknesses of the case
- examining the merits of various legal courses of action
- taking immediate steps to protect the interests of the clients
- representing the client in dispute-resolution proceedings, where unavoidable
In India, as well as for international projects, specialised knowledge of the jurisprudence of contractual and construction laws is required, not only to assist the client in such scenarios, but also to put forward the best possible case of the client before a dispute resolution forum.
While Archeus is happy to state that it has played a vital role in bridging the gap between the client’s expectations and the forum’s understanding, its task is made easier in a scenario wherein the firm has been
involved in all stages of the project. This is because all accumulated knowledge of the practitioner about the particular project aligns with the advisory and assistance offered during the first two stages.
