In the membrane field, disputes arise over products which have contested intellectual property (IP) or patent claims. They can also arise over the process design for plants, which are claimed to be incapable of meeting their contractual obligations. The dispute can escalate in three stages:
- Pre-legal dispute in which an independent report is provided to allow either side to assess their options
- Legal proceedings in which reports are written in response to questions from legal counsel (Note that a dispute resolution process may develop during the case to achieve a negotiated outcome)
- Cross examination in which the matters raised in the reports are tested in a court room
The design of a plant represents a compromise between cost and security in achieving a desired outcome, which is normally the quality and quality of treated water. In most cases, there are several process flow schemes that could achieve the required outcome. The owner and owner’s engineer decide on the most appropriate solution for individual circumstances.
Disputes can occur when a design is too aggressive or operational requirements are too onerous. The origin of the dispute may be the result from design decisions taken at the outset or may arise due to deficiencies in components, equipment or processes, or from shortcomings in operation. Assigning responsibility or blame can be a complex task.
Prior to a contested situation developing into a legal dispute, the sides may wish to assess the status of their position. For a plant or process design, this could include an assessment of the state of the art or of market norms. There would then be a more specific consideration of whether the plant has the capability of meeting performance targets within operational constraints.
If the client decides to take the dispute further, legal counsel may be appointed. MCA is experienced in writing reports to address specific questions posed by the legal team and has a broad experience of this process in Europe, Australia, the Middle East and the USA. Assignments have included water treatment, wastewater reuse and desalination plants, and have involved RO, UF and MF technologies as well as other unit operations commonly employed in the water industry.
The final stage of the dispute process is a court hearing and MCA has experience at being cross examined on the content of reports on multiple occasions.
On complex cases and multi-faceted disputes, MCA can network with other experts to provide a more comprehensive response.
During the development of a legal case, there may be attempts at a facilitated discussion to seek consensus or reach a negotiated agreement, and MCA has experience of involvement in these processes.