Legal Risk Management in Construction

This subject has the following teaching availabilities in 2013:

Successful completion of LAWS70314 Principles of Construction Law or LAWS70176 Construction Law

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

Construction industry personnel and their lawyers are increasingly aware of the need to anticipate the legal implications of communication and ‘issue management’ throughout the project life cycle. This subject aims, therefore, to equip industry professionals and lawyers with the skills necessary to manage legal risk during the procurement and delivery phases.

Complimenting other subjects within our construction law program which examine legal risks and their management, the subject provides practical insights into key aspects of the legal-project interface, including tendering and contract preparation procedures that efficiently ‘document the deal’ and contract administration techniques that minimise disputation.

The subject lecturers are practising lawyers who have substantial expertise and experience in advising during the various phases of a project, enabling students to develop an advanced and critical understanding of this specialised area of law.

Principal topics will include:

• The various stages of project inception. This will include an analysis of the role of the client, including project feasibility, financing and procurement model selection and tender preparation. We will also consider the role of the contractor in being ready for a tender, including through partnering arrangements.
• The key stages of a tender, from expression of interest to requests for tender, and legal issues to be managed during this phase
• Analysis of the key project risks and their allocation and adoption between a contractor and client in negotiating a construction contract. Includes consideration of alternative approaches from contractors and clients to negotiation of these obligations
• The interface between the project management and legal disciplines, including the ‘human element’ in delivering the deal
• Managing sub-contract risk
• Risk identification and mitigation strategies employed during the delivery phase and their role in avoiding unnecessary disputation
• Project implementation and key steps to kick off a project to encourage an effective project environment
• Administering claims for time and cost under construction contracts
• Managing the ‘paper war’ during the delivery phase: legal and technical issues and the role and limits of communication between the parties (including legal privilege issues)
• A consideration of the legal aspects of stakeholder management during the delivery phase.

A student who has successfully completed this subject should:

• Have a comprehensive understanding of the role of construction advisors in the whole of project cycle
• Have an advanced understanding of project inception processes and the critical steps to be undertaken by principals prior to the issue of a request for tender
• Have an advanced understanding of the key stages of the tender process
• Be able to provide strategic legal and commercial advice in relation to contract reviews and to identify the key legal and commercial drivers in negotiation of construction contracts
• Have an advanced understanding of good practice in contract implementation
• Have an advanced understanding of prudent contract administration techniques
• Be able to provide meaningful advice about the rights and obligations that a party has under project documents and the general law
• Be able to provide strategic advice in relation to dispute avoidance and resolution during a project
• Be able critically to engage with debates about legislative regimes, the range of project delivery structures and dispute avoidance and resolution mechanisms.

• Take-home examination (100%) (16-19 August)
  or
• 10,000 word research paper (100%) (30 October) on a topic approved by the subject coordinator
  or
• a hypothetical drafting exercise (100%) (30 October)

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Visit the Melbourne Law Masters website for more information about this subject.

This subject is not available as a breadth subject.