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This methodology is based on case law:

  1. Short introduction of the claim (max. 5 lines)
  2. What burden of proof needs to be met to get the claim awarded?
  3. Facts and description of the claim including timeline 
  4. Qualification and legal arguments
    • Capped or not capped
  5. Claim amount
    • Documentation
    • Assessment/estimation
  6. Conclusion 

6.1. Short introduction of the claim

A very short introduction of the claim is important so the judges have an idea of what kind of claim it is. This has to be very simple so that the judges knows the overall “picture” though this headliner. The claim amount should be mentioned here too.

6.2. What burden of proof needs to be met to get the claim awarded?

This is the “what”-section of the description of the claim. A short list of the criteria which has to be proven to be successful and who has the burden of proof. 

For variation orders the burden of proof is on the contractor. 

6.3. Facts and description of the claim including timeline

Here it is very important to keep it clear and simple.

In this section you describe the documentation which will support the claim. The more factual documentation which can be submitted to the Arbitration Board, the better. 

Facts have to be drawn from existing documents like time line/baseline in the original contract, changes in the contract during execution of the project, minutes of meeting from various meetings with the Employer, e-mails and witness statements etc..

If a claim concerns a variation order documentation of the facts could for instance be as follows:

  • Description in the signed contract (most likely the appendices to the contract)
  • Description of the in-fact delivered – could be drawn from:
    • E-mails
    • MOM from meetings
    • Photos
    • Witness statements 
    • Drawings (as built documentation)
    • Hand over report

6.4. Claim amount

In case law the amount claimed by the contractor is often reduced by the Arbitration Court based on their own estimation, which is always in favor of the Employer (due to the fact that the burden of proof is on the contractor). Often, they are reduced by 1/3 or 2/3. 

Sometimes it will make sense to state your full claim, but in recognition of that fact that case law often base it on an estimation, you reduce your own claim with your own credible estimation. This will heighten the credibility of the claim.  

References to case law can be relevant here too.

6.5. Conclusion

In the conclusion you wrap everything together and state the exact claim and your claim of interests.