Why project counsel is critical during the live phase of complex infrastructure projects

It is during this “live” phase that the role of project counsel becomes most dynamic and impactful. Far from being a passive observer, project counsel - whether embedded within the project team or closely aligned with it - serves as a linchpin for successful project delivery, risk management, and dispute avoidance.

Turning contracts into action

Project counsel are uniquely positioned to translate the contract from a static document into a living framework that guides day-to-day project decisions. Their integration with the project team enables them to provide guidance through the critical live phase of a project, from kick-off to conclusion.

Read more on integrating legal support in your project team:

• Projects go better when legal support is integrated
• Front-end lawyers critical to driving project success
• Integrating dispute resolution lawyers vital to successful projects

At the earliest stage of a project, counsel will be responsible for ensuring all stakeholders involved understand the key provisions of the contract. Making sure everyone is aware of the risks and how they are allocated, and what responsibilities and roles each stakeholder has, is essential to ensuring a smooth start to the project.

Establishing clear protocols for communication and information sharing is a vital part of this process, particularly when working in the Middle East, where a project kick-off may involve a diverse range of languages and experiences from a multicultural workforce – making clarity and accessibility of communication lines key.

As part of this, delivery-tailored sessions for training and implementation will help ensure each group – from project managers to legal teams – understand expectations and, more importantly, their roles in the process.

This may require adapting training and communication processes depending on the level of complexity a team member requires, and what languages are most appropriate to ensure full awareness.

Clean information dissemination systems, and ensuring stakeholders understand processes for raising and escalating any potential issues at an early stage, will mitigate any risk of misunderstanding over what has been agreed by the project’s various parties.

As a project progresses, counsel can ensure compliance with local and national procedural requirements, making sure notices and advisory information is written and reviewed, and disseminated where needed.

Alongside keeping clear communication channels open with stakeholders, providing advice on interaction with counterparties is also a vital part of the project process, ensuring constructive relationships with those outside the stakeholder circle who can still influence the success of the project.

As with internal advice, having these approaches mitigates the risk of procedural or regulatory errors, where a lack of local knowledge can prove costly.

For instance, many jurisdictions have strict procedures around things such as notice periods, where failure to comply with these regulations can result in a significant loss of project entitlement. In some regions there are mechanisms to explain contractual notification failures, and this is where good project counsel involvement can help identify and intervene to maintain both trust and engagement with a project which has mistakenly failed to follow local requirements.

Providing real-time advice

Project counsel have an essential role to play as a project progresses, providing immediate guidance for stakeholders on the meaning and application of contract clauses as potential issues arise to ensure that any accidental breaches or potential areas of dispute can be smoothly navigated.

Mitigation of potential issues at the earliest possible stage will prevent them from escalating and adding time and cost to a project. Sometimes these can come from external, unlikely sources – from the local to the geopolitical.

One such example, which has surfaced recently, is how sudden international factors can weigh against contractual obligations, as seen with the implementation by the US government of tariffs against other countries – and reciprocal responses.

The ongoing nature of a project means the counsel will also have a key role in guiding stakeholders through the unfolding nature of change, both in terms of identifying and cataloguing any shifts in timeframes, costs or issues which arise, and in ensuring understanding of how they relate to the contractual requirements on the project.

Documenting this input and working closely with the commercial and technical department heads to ensure expert input is available and clear and that comprehensive records are kept around issues which could impact on the project is something that should also not be overlooked. Contractual claims often fail not for lack of legal basis but because insufficient contemporaneous records were kept, and project counsel’s experience in how to keep effective project records will be invaluable.

This is especially important around the process for submitting claims, where contracts may contain procedural information but not the detail needed to strengthen the claim’s chances of success. Proactive advice as situations arise from project counsel can help improve the prospects of a contractual claim.

Governance and disputes

The experience of project counsel can play a crucial role in ensuring mechanisms around governance and reporting requirements operate efficiently.

Establishing what the internal structures around project governance and reporting are, and ensuring that those involved both know and understand how to use these, will help ensure decision making processes are managed efficiently.

As with the kick-off phase, maintaining transparent and clear lines of communication with all project stakeholders limits the risk of potential misunderstandings or misalignment. This extends to providing support for the preparation of progress reports, stakeholder updates and board papers.

For projects with international stakeholders in particular, this transparency can help maintain confidence in a remote project, where counsel who have been involved in proceedings since the kick-off phase can provide insight and assistance that procedures have been followed appropriately and that the project has appropriate oversight.

When issues do arise around disputes and potential breaches of governance procedure, the input and strategic insight of project counsel can help smooth any potential speedbumps this may place before a project’s process.

Often a project counsel will have a background as a dispute lawyer as well, so can bring their experience to bear in understanding how entrenched positions may be – and if ways round them exist.

Facilitating mediation and negotiations over disputes, or introducing alternative resolution mechanisms, before these crystalise into formal issues can head off much of the potential disruption that progressing to court or arbitration can bring.

Beyond that, though, counsel can bring their experience and knowledge to bear in coordinating with specialists if an issue escalates, presenting as smooth a transition as possible between informal and formal dispute proceedings.

Maximising project counsel involvement

Construction projects move fast, meaning project counsel must be adept at providing nimble, tailored and concise advice within short timeframes.

In our experience the only way to ensure this is possible is to properly embed the project counsel in the project delivery team. But what does this mean in practice?

Primarily it requires people, processes and, increasingly, technology to be put in place early to ensure that the counsel is up to date with the latest situation on the project. Construction projects generate ever increasing volumes of documentation and information, and simply copying project counsel into every single transmission is likely to swamp them and make the information they genuinely need more difficult to find.

At the beginning of the project, thought needs to go into how and what documentation gets shared, to ensure project counsel receives only relevant documentation and in a useable format. This relies on stakeholders having an effectively managed and efficient document control system. Where this does not exist, it may be necessary to involve IT teams on both sides of a contract to identify and implement appropriate methods.

Enabling regular attendance for the counsel at scheduled project meetings can be beneficial, as this helps keep them up to date and in a position to help troubleshoot legal issues before they become problems.

Experienced project counsel will often be able to spot potential traps and legal risks before the project team and can provide on the spot advice and support. Being up to date on project progress also reduces the ‘reading in’ time needed when specific advice is needed from project counsel.

Finally, there is a human element. Building relationships early on between key project members and the counsel will pay dividends throughout the project’s lifespan. Processes and technology are valuable when deployed to support and assist the people tasked with delivering the project, but the most successful projects are characterised by elevated levels of trust and communication between these people.

Embedding project counsel in the project team also means putting effort into building the relationships that will see the project through to a successful conclusion.

Ultimately, the live phase of a complex infrastructure project is where theory meets practice - and where the value of project counsel is most keenly felt.

By being present and proactive during the live phase, project counsel deliver tangible benefits:

• Reduced risk of disputes and costly litigation.
• Improved compliance with contractual obligations and procedures.
• Faster, more informed decision-making.
• Stronger relationships with project partners and stakeholders.
• Greater project resilience in the face of unforeseen challenges.

In an environment where margins are tight and risks are high, the right legal support can make the difference between project success and failure.