Whole scenario is changing in the infrastructure disputes, especially the recent amendments in the arbitration act and effective time-management is kicking-in. With time management in the arbitration, the confidence of MNCs are increasing to have a seat in India in the disputes. We are coming closer to resolving the disputes and what creates the confidence in both the parties is that if the dispute is resolved, then only people will keep on raising the dispute.
With regard to the third party funding, a funder will first look at the possibility of the success in the dispute on the basis of the document and would lend financial assistance to contest a case. This is one way of third party funding. Here, funder granting financial assistance to the party in dispute is protected by the applicable laws. Alternatively, if someone has a right to sue somebody, can he sell his right to sue to the third party against the evaluation between both? Therefore, there is a need to understand two different situation. If it is a contract, and a valid contract, the enforcement of the same is not an issue.
Law is like a moving wheel it’s a dynamic law gets interpreted from time to time to serve the changing needs of the society and the dynamic means it is always static vis-à-vis its axis equity, justice but it is always moving with respect to the third parties. So, yes we are moving towards the arena where third party funding will slowly and surely come into the system.
One cannot contemplate all the situations in mega projects. There can be many possibilities. There may be change of scope/amendment, there may be a problem in getting land by employer agency or governmental agency passed to you, there can be issues with a banker who provided you the financial closing for which you are not responsible, the other loses due to time sensitiveness. Dispute is enemy in mega projects. Dispute is due to the necessity and necessity comes to grow, you cannot contemplate everything on the onset and you can look at same situation from two different angles.
In India, we follow a particular system where purposive interpretation is possible and permissible. We have a very robust system based on the arbitration. And within the arbitration rules, we have a time bound dispute resolution mechanism.
The infrastructure companies need to have qualified and trained claim management team within their system.