Navigating construction disputes in the energy sector: Insights from Mehak Oberoi

Mehak Oberoi, Legal Head/General Counsel for GE Vernova, Hydro Power, joins Niyati Ahuja to discuss the importance of lawyers understanding business needs and the intricacies of construction disputes, emphasizing the importance of claim avoidance and the challenge of finding the right arbitrators for a case. The conversation covers top tips for minimizing risks during the construction phase, including detailed briefings and early involvement of project managers, before discussing the impact of technology on dispute resolution.

Transcript:

Intro: Hello and welcome to Arbitral Insights, a podcast series brought to you by our international arbitration practice lawyers here at Reed Smith. I'm Peter Rosher, Global Head of Reed Smith's International Arbitration Practice. I hope you enjoy the industry commentary, insights and anecdotes we share with you in the course of this series, wherever in the world you are. If you have any questions about any of the topics discussed, please do contact our speakers. And with that, let's get started. 

Niyati: Welcome to today's episode of our Arbitral Insights podcast. I am Niyati Ahuja, a senior associate in the International Arbitration and Global Commercial Disputes Group in Reed Smith New York. I'm duly qualified in New York and India. My work involves both commercial and investor state arbitration, white collar investigations and litigation proceedings in New York. I'm delighted to have Mehak Oberoi with us today. Mehak is currently the legal head and general counsel for General Electrics for NOVA in Asia Hydropower, APAC. She has over 17 years of experience during which he has helped businesses develop and implement legal strategies for the renewables business on a wide array of legal issues facilitating seamless business operations and commercial transactions, deal negotiations, and offering critical legal insights to the board, ensuring an alignment with organizational objectives and compliance. Welcome, Mehek. We'll start very quickly with learning more about your career path. Could you just spend a few minutes telling us about what your career has looked like so far?

Mehak: So I finished law school in 2008. I worked with a couple of law firms in India for about seven years. And that's when I moved to General Electric. And I hopped around various businesses of GE. So I've seen a lot of businesses being bought and sold and acquired. So all of that. And now for the last five years have been with the renewable piece of GE.

Niyati: That's very interesting. Thank you. One thing that I love to ask and understand about is who has been your inspiration in your personal or professional life or somebody like a mentor? Who would you think is that one person or two or three, as you wish?

Mehak: So I'm actually a first generation lawyer so I wouldn't I mean as far as my field is concerned I don't think I really have a role model from my within my family but when I was in third year law college I interned with Pepsi and at that time the the VP of legal was Mr. V.R Shankar. So I think he is the one who really started grooming me and helped me understand that this is something that I would possibly like to do. So yeah, so he was, I think, my first mentor. Then I think once I moved into GE, I had a couple of them over here because in-house legal work was very new to me. I think for all people who work in a law firm would understand that work in a law firm versus work in-house is very different the way the way it is structured whether it's process or just general day-to-day work is very different so I think I needed some hand holding in the beginning so I had some good people at that time also to help me out.

Niyati: Well that's that's really nice to hear that there were people helping because it's sometimes hard to find just people who help you when you need hand holding so that's that's nice to hear. Mehak, can you tell us a little bit more about so you said you started with law firm working at law firms so what pushed you or what made you choose to move in-house because you have been in-house for several years now so what made you think oh yeah maybe I want to as you mentioned there's a difference what made you think maybe I could do in-house?

Mehak: The very honest answer, I think life took me on that path because I just had my first daughter. I couldn't manage the commute because I stay in a particular place and my office was about an hour and a half one way. So I used to not see my daughter in the morning. She was sleeping when I used to leave and she was asleep again by the time I used to come back. So I decided I had to shift my job closer to home. and at that time when I took it on I think there were there was this myth that you know it'll be probably a slightly more relaxed and time effective job to have in terms of raising children. So that's how I took it on and very frankly at that time also it was very difficult for me to make the switch because I don't know I was stuck in that phase in terms of not having too much to be a legal head but having you know I was stuck somewhere in the middle so when I got GE actually I really really took a leap of faith because the person who interviewed me actually told me that I'm overqualified for the job I know it's it's really it's really like that because you know you will be shocked if you even hear what I was actually doing I was reviewing non-disclosure agreements globally for oil and gas business that's all that i was hired to do after seven years of experience so I was told but I was so yeah so I was so desperate to get that job I said no I will do it and maybe somewhere I think I had that faith that I'll be able to climb up the ladder and I think three months in I grabbed on the role to start reviewing their global sourcing agreements as well and slowly I climbed the ladder and, nine years later, here I am, but it was a true leap of faith.

Niyati: That's been a very successful leap of faith, I will tell you that. It's also inspiring to hear that you were hired first to do something so basic and you're doing such an excellent job now. Well, that is very inspiring. So what is one thing, and this is actually feedback for people like me who are working inside law firms. What is one thing that you wish outside counsel did that they don't currently do? So is there like any feedback or like have you seen in your experience that you wish, oh, this law firm that I'm working with or I worked with at some point, I wish they did something differently?

Mehak: So I think what typically happens is that law firms work in a slightly more theoretical manner. And I don't think it's any fault of theirs. It's just that they're not so in tune with the business needs as I would be as a company counsel. So I think possibly they need to walk a couple of miles more and try to show a little more interest in the business perspective of things. And when I say business perspective, the first ground rule is to try to understand what the business is. What do they really do? If there's a construction dispute, for example, I need the law firm to be able to show me interest as to what that project really was. How was it constructed? Why is there a dispute? You know, so maybe slight engineering nuances, which even I'm not really comfortable with. There's a lot of technical jargon, just some interest to be able to appreciate the nuances. And I think that helps them become better lawyers also, because then they can help me make those commercial calls which are compliant legally.

Niyati: Yeah, no, I completely, completely agree with that. In my experience, I try to understand what their business objective is, especially as a dispute resolution counsel. The business goal is not to get into a dispute. It is to avoid a dispute. So if we can catch it at an earlier stage or try to find an amicable resolution, I think all clients appreciate that because they want to keep functioning. They don't want to get into a dispute and get busy with that dispute. So I completely understand what you're saying. And I think I agree with you that it's not for a fault of law firms that they sometimes don't get into what the business goals are or what the business is actually doing, because they're handling several clients at the same time. So maybe they are not as in tune with the business goals as an in-house counsel. But that's why it's really, really important to have open communication channels between the in-house counsel as well as the law firm. So that's a really good point.

Mehak: And I think it's also a perspective that for a law firm, you have thousands of clients, clientele. My only client is my company. So I'm watching out for one single interest, whereas you're looking out for multiple. So I guess that also creates that shift of focus.

Niyati: Yeah, no, I completely understand. And as you said, your one client is the company that you're working for. Can you share what your day-to-day looks like? Because a lot of people on the outside are curious, what does an in-house counsel really do? Can you share just like what? Because you do a lot of things. I'm sure like the stresses that you deal with are very different from somebody at a law firm. So I'd love to know like what does your day-to-day look like?

Mehak: Oh, chaotic. I think that's the best way to describe it. I think the moment you open your eyes, the first thing is that you check your phone and you just need to know that no bomb has exploded overnight. And that could be, you know, it could be an injury on site. It could be a flood on a site. It could be an accident. It could be some criminal complaint that has been filed. And so, you know, or your bank guarantee has gotten invoked. So all of those kind of things you're kind of watching out for something not happen overnight. Plus, I work with different time zones. So a lot of the times that urgent factor comes in overnight when I'm just about opening my eyes. So that, otherwise, I think on a day-to-day basis, I support the entire project cycle, right? From the commercial till the litigation or the dispute resolution phase. So I do all of that. So I think it's right from taking calls on whether projects need to be terminated or they need to be suspended or what is whether we need to go into litigation for something. We're negotiating on contracts. What are, you know, the commercial teams could be stuck somewhere. So, you know, brainstorming with them as to what are the possible options we have. So, you know, I think a mix of all of that. And of course, a lot of compliance, a lot of ethical standards that you have to abide by or adhere to. So you're kind of keeping a check or a lookout for that as well on all fronts.

Niyati: Sounds like a full, full, full plate from morning to night, or even in the middle of night with the different time zones, it seems like. So my next question, Mehak, now that we've talked about a lot what we can learn as law firms from in-house counsel, the next one is for our audience members who might be in-house right now. What strategies can in-house counsel employ to minimize the risk of disputes during the construction phase of projects? Is there something that you've identified and you make sure that this is done? Or if you have just some general piece of advice of how in-house counsel can just avoid at an initial, at the inception of projects to have disputes at a later stage?

Mehak: So I think the sole focus has to be on claim avoidance. And I think that concept is still fairly new. I think we've just started transgressing from say transcending rather from you know litigation to arbitration and now mediation and now you know we're trying not even to get into mediation and try claim avoidance altogether so that first of all so a couple of things I think as far as best practices as far as claim avoidance is concerned would be would be a very detailed brief from you know the commercial team to the project execution team i think that's extremely crucial in terms of a commercial team being able to brief the project team as to what the project is about, what the contract is about, what are your obligations, what is the payment structure, what works. What was the context of conversations and negotiations that took place at the time that the contract was being discussed? So, you know, all of those factors, I think, give a very well-rounded and holistic view to a project team. And the second would be, I think you should always try to appoint the, typically the project manager would be appointed once the contract is signed. And that's when the project manager takes on. I think it's a great idea to have the project manager appointed whilst the contract negotiations are going on. They don't necessarily need to sit on that table, but there are a lot of times where you could go back and take that feedback because he's the person who's going to be executing it on ground and will be able to give you the insights that you could have never thought of. So I think that's a very important factor. Over and above that, I think it's constant and regular communication and catch-ups with your project teams, with your contract teams. Because all said and done, you're not sitting on the site. So it's important for you to build that rapport with the project teams for them to want to come to you and give you those updates as to what is really happening. Because that's the only way you will be able to red flag something that you see coming. And I think those are the, I guess, also, I think sitting in on the project review meetings and all at times, I mean, I do understand, I think lawyers do, including me, find it rather boring at times. And those meetings drag on and sometimes you can't understand the technical jargon, but it does help even if you catch on a little bit of the stuff. So those monthly meetings or generally quarterly meetings, they do help also.

Niyati: Right. So regular check-in and regular communication, as well as giving exposure to the project manager at the initial, very initial, even before the project has begun. I think that is a very important key piece, because if they are going to execute it, they should know what went behind the negotiations. I think that's a really excellent point. Mehak, now what are the key challenges companies face? And it doesn't have to be obviously your specific experience, but you are in this sector. So you are open to these risks and challenges that companies are facing when resolving construction disputes through arbitration. And if you have any thoughts on how in-house counsel can address them. And it doesn't have to be your specific experience.

Mehak: So I think one very crucial one in construction disputes is being able to find the right kind of arbitrator who understands the nuances of and the technicalities of a construction dispute. You need someone who's adept at being able to appreciate all of those, whether it's your delay claims or your extension of time related claims, etc. It involves a lot of technicalities that one needs to appreciate. So I think that is a problem that everyone does face. Second would be I think that's not so much of a construction dispute specific one but just generally the enforcement related challenges that we are constantly struggling with especially I mean in in context of India it's it's really difficult I've been stuck in enforcement proceedings for three three four four years, After-

Niyati: I am rolling my eyes for the audience members who can't see but yeah that's a long long period because you've already undergone the whole arbitration process and then the enforcement is taking three to four years is i can i can imagine how unsatisfying that is as an in-house counsel.

Mehak: Yes yes that I think also when we hire experts in an arbitration. Now, they're, I think, very good at their job. They do understand what they're doing. They're very clear about the numbers. But what a lot of the times happens is that they may not be able to simplify what they're trying to say to an extent that the tribunal understands it clearly. Because they really have to bring it down to grade one level. You have to think of it like you're explaining it to a child, unless you have a technical team as a tribunal. So I think that as well can help if experts can appreciate extremely simplifying what they've been hired to do.

Niyati: That's one thing that as legal counsel or at law firms, we make sure that when we receive the expert's first report, we look at if it is easily understandable by a layman, especially if we don't have a technical expert. Because as you're saying, even though arbitrators can be chosen by parties, and that's one of the good, better advantages of arbitration, sometimes it is still very technical in construction disputes or mining disputes, something very, very in a technical field. So I completely agree with that. The next question is because no podcast or no webinar can be complete without talking about technology. I'm curious to know in what ways have you seen technology has impacted the management and resolution of construction disputes in your projects, as well as just your day-to-day internally?

Mehak: So I think we're still grappling with what is there. I do see some organizations that have already started using it. I see that a lot of firms that provide experts as witnesses, etc., they have already started using AI tools. But I think as far as in-house is concerned and construction on infra-related companies, I haven't heard of many who have possibly embraced it as yet. I think everyone is still trying to understand. And I think, you know, those disclaimers that you get with AI that, you know, we're not foolproof and you're going to have to verify everything. So that just kind of makes everybody wary. But I think in the very, very near future, what I would see happening is probably us being able to use it for our early case assessments. Contractual reviews, for understanding the merit of our claims, being able to select arbitrators, actually, in a random manner, you know, without human bias. Just being able to very objectively you know compare expertise etc that is needed without having your influence or your bias coming into the picture so that would be one I think important place also I think on a mediation front one would be able to probably come up with lots of these creative nuanced innovative solutions that can be parties can hash out amongst themselves so I I think those are the factors and possibly, yeah, ADR and the blockchain and lots of, you know, digital evidence being submitted, lots of simulations and regenerations and not just boring evidence like we submit today. So I think a lot is going to happen in the next one year, I think.

Niyati: Yeah, I think it could be very interesting to have more relatable or more interesting opening arguments, evidence how it is submitted, all of that. Obviously, nothing can, at least not in the near future, replace lawyers like yourself and me for contract drafting. But definitely a first draft or preliminary assessment could be possible at the rate that things are going. Obviously, I completely agree with you that AI is not foolproof and it needs verification. So that is something I always make sure that everybody keeps in mind if you are using it. Also, make sure that it stays confidential, especially for things like arbitration, because our proceedings, commercial arbitration proceedings are often confidential and parties want to maintain that confidentiality. So just for our audience members, make sure you're not putting any confidential information on these portals unless it is within your organization and it has been approved for use by your organization.

Mehak: So Singapore, in fact, Singapore High Court has come out with their rules. Supreme Court has come out with their AI rules, I think as a couple of days ago or something. So I think we're seeing that now. I don't know when will India start that, but I think it's already started in Asia.

Niyati: Yeah, no, I think it's time that we need to stop being scared of it. But include it in our work to make our life easier, make things more cost-effective and time-effective and efficient. So I think that is the future. And I think as in-house counsel, you're also thinking that. So it's great that we're both thinking that it is something that we don't need to be scared of. So generally, Mehak, in your experience, because you do see oftentimes disputes, what do you think is the outlook on the future of construction arbitration in the APAC region? What are the trends? What do you think? Are you going to see more disputes? Are you going to see less disputes? In my opinion, for example, I think there are newer projects, especially in the APAC region, there's a lot more investment and a lot more development. So there might be more disputes because of more projects, as simple as that.

Mehak: I think the disputes are not going anywhere. No matter how much you try, construction disputes are very, very heavy on investment. And they span across a really, really large chunk of time. And because they are so costly, you have a lot of every single day of delay is causing you to deplete contract margin. And there are too many factors that you're trying to coordinate at the same time because typically for construction disputes you will have procurement happening from one end, manufacturing happening somewhere else. Everything being delivered to the site and then work happening over there. So there are just a lot of jurisdictions to coordinate on as well typically. So the disputes are not going away anywhere and if the projects are increasing so are the disputes going to but I think the mindset of people is probably changing for the better like I said towards we're trying to work towards claim avoidance or we're trying to go into mediations to be able to avoid the entire arbitration process also now so the mindset is changing but that's not something that's going to happen overnight so if you're looking at the near future then the disputes are not going away anywhere.

Niyati: Yeah I think you're right we are seeing more and more parties amenable to getting into negotiations pre-arbitration and sometimes they don't work and oftentimes I see they don't work because that that's when we get the work right when they don't these negotiations don't work or these mandated mediations don't work and then we actually have to commence arbitration to protect your interests so I agree with you they're not going anywhere. Kkay moving on to some lighter topics Mehak it's actually this is not as light but it's not as heavy as construction disputes. I want to do, first of all, congratulations for being a part of the newsletter and blog steering committee of Indian Women in International Arbitration. I'm curious to know from you two things. One is, what drew you to apply to be a part of IWIA? And can you answer that? And then I'll ask you the second question.

Mehak: So I think I'm a staunch feminist. So and I have been part of a lot of diversity, initiatives and women-related initiatives within the organization as well in the past. So anything that is trying to uplift women, women for women, I’ll always be game for.

Niyati: Well, that makes my heart happy. I, as you know, I definitely have the same belief. The other question is also related to diversity. We talk a lot about law firm diversity and there are statistics and firms are now a little bit more open to understanding if there is or there is missing diversity or how they can make sure that there is equality in representation. Do you think you're seeing the same movement internally within companies? And are you seeing, is there enough diversity in in-house councils in in various companies and even in I mean I don't need to talk about your specific company but generally do you think in-house council also struggle with not seeing enough diversity especially in in very technical fields I think

Mehak: So if you're talking about in diversity with in-house councils I think we have relatively enough diversity there but if you're going to talk about technical fields or the renewable sector the answer is a clear no it's not there and I struggle to understand that sometimes as well I think one of the reasons would be that when we're clearing college or rather even when we're doing if we were to do masters there is no specialization in the renewable sector or in construction as such you know at best you can do ADR or you know any specialization that you choose so it is something things are coming up now I do know that I think in India also somewhere And some colleges are coming up with some construction law related diplomas or whatever. But at least since the time I started out, it's a path that I took. And then I pursued that path. So there is no prior training. So it's almost like a chicken and egg situation that they want you to have prior experience. And so how do you get in? And when you get in, you don't know how to get out. So if I was to change my industry now, I'm in such a niche market that it would be very difficult for me to change now.

Niyati: Yeah, no, I think it's a ground level up. Training is so important and you're absolutely right. And last week, actually, I was talking to somebody. I was in D.C. And I was talking to somebody who did their master's in oil and gas law. And I had no idea that even existed until just last week. And so I hope there's more law schools which are open to this. And with the renewables sector growing at the speed that it is, I think it's definitely something that we can build expertise in. So we're coming towards the end of the podcast, Mehak. You've been really patient and you've answered all questions so brilliantly. What is your advice to young lawyers who are aiming to go in-house or just generally enter the legal profession at law firms as well? Just if you have a piece of advice for younger lawyers.

Mehak: I think perfectionism is overrated. I don't think... Any of us have gotten where we have without making mistakes. You're bound to make mistakes. Just try not to repeat them and don't make them deliberately. So, you know, yeah, I mean, I think what something that my father used to always tell me is that error of judgment is forgivable, not error of intent.

Niyati: That's a very wise quote.

Mehak: Yeah, so that's something you used to always tell me, which is, I think, the mantra that I follow. So I mean, I make mistakes, everyone else does. You have to learn to forgive yourself and try not to repeat them.

Niyati: Yeah, I think that's a great advice because especially when you're younger, you want to make no mistakes because you know there is a lot of pressure, especially as a female diverse lawyer. I think there's a lot of pressure to be perfect. So to not make the mistakes again is, I think, one thing that I would definitely tell younger lawyers to do is learn from your mistakes. It's okay to make mistakes. And I hope you have supervisors who forgive those mistakes and let you. Yeah, I think that is equally important just to have a supporting boss, you know, who lets you make and learn from those mistakes. Okay, for the last question, it's to end on a lighter note. I know you have a sweet tooth from our past conversations. What is your favorite dessert in the world? What is one thing you can eat forever? Forever? One dessert.

Mehak: A hot chocolate fudge sundae.

Niyati: Okay, is that from Nirula's? Is that one of your favorite ones?

Mehak: Yes! Yes!

Niyati: Okay, well, I did not know that. But it used to be my favorite when I was a kid. And we couldn't eat so many sweets when we were kids, right? So I used to love that. But, well, that is such a... I know exactly what you're talking about. But thank you so much, Mehak. Thank you for joining us today. I appreciated all the time you took out and answered all our questions so candidly and so honestly, which I appreciate. Thank you, everyone, for listening. And I hope you listen to our next episodes of the Arbitral Insights podcast. And we'll see you next time.

Outro: Arbitral Insights is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's global international arbitration practice, email arbitralinsights@reedsmith.com. To learn about the Reed Smith Arbitration Pricing Calculator, a first of its kind mobile app that forecasts the cost of arbitration around the world, search Arbitration Pricing Calculator on reedsmith.com or download for free through the Apple and Google Play app stores. You can find our podcast on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP. 

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