Victor Madeira Filho is a founding partner and head of the construction and engineering practice at Brazilian law firm Madeira, Valentim & Gallardo Advogados. He is recognised as one of the best construction lawyers in Brazil. His practice areas within construction, engineering and infrastructure include civil construction projects; steel production projects; mining projects; logistics projects; energy projects; sanitation; contract negotiation; public bids; claims mitigation and dispute avoidance techniques; dispute boards and mediation; and litigation and arbitration.

What attracted you to a career in construction law?

The variety and complexity of the construction cases were the key factors that attracted me to a career in construction law. The variety is not only related to the types of activities you perform (from contract drafting and negotiation to construction disputes), but also the different sorts of construction projects you get involved with (buildings, roads, ports, plants, railroads, etc) each presenting a different set of legal and engineering features and challenges that need to be known and studied and solved by the lawyer. From the lawyer perspective construction also offers a variety of regimes for contracting (design build, EPC, build operate, etc) that need to be a part of your repertoire. Regarding complexity, construction law also offers the opportunity of working with complex contracts and disputes, which is very stimulating for the practitioners in this field. In other words, you never get bored being a construction lawyer.

What do you enjoy most about working in the construction sector?

Construction is a phenomenal industry to be in considering its unique characteristics and the opportunities that it offers. I really enjoy feeling a part of amazing construction projects and positively impacting communities with my work, seeing the projects I am working on being built with my own eyes.

How has the market changed since you first started practising?

When I first started practising, the construction law market was almost inexistent in Brazil. Construction always thrived in my country, but there was no legal market specifically tailored to the construction sector. Since then, the number of lawyers and law firms specialised in this field had significant growth, which led to the development of a construction law community and led to the foundation of the Brazilian Institute of Construction Law – IBDIC a decade ago, of which I am president and that now plays an important role spreading consolidated legal knowledge developed for the construction industry.

How do you establish a detailed understanding of a client’s business to advise them effectively?

Business understanding is a key factor for the success of any lawyer, independent of its area of practice. In the construction law field, this importance is even more critical.

In time-constrained sectors such as infrastructure and construction, an in-depth knowledge of clients’ business by a construction lawyer is essential, as it allows the attorney to be more proactive in advising its clients of upcoming risks (on both contract negotiation and disputes) and to provide tailor-made solutions in an expedited matter.

In this context, it was crucial for my career to experience different types of construction projects in the early stages up to their conclusion and to have intense interaction with engineers, architects, and project managers to learn the lifecycle of such projects, the recuring risks and problems, as well as the reality of what happens at a work site. It is essential for a construction lawyer to try and be as close to an honorary engineer as they can, understand and speak their language as well as extract from them their experience, the way they conceptualise and execute different projects, as well as how they usually deal with everyday difficulties. Every client will be different and, with time, you end up gathering a significant body of experience that helps you advise your clients in the best way possible.

Working as an in-house counsel of an infrastructure company for few years also gave me the opportunity to live the day-by-day of a project, adding considerable practical knowledge and experience on how this business works and the skills to comprehend where my knowledge as a lawyer will be most welcome to the client.

To what extent is arbitration now the preferred method of dispute resolution for construction disputes and why?

Considering the complexity and the risks involved in construction projects, claims and disputes are almost inevitable.

A typical construction project dispute may involve change orders, unforeseen events, problems with the design, disagreements on the work progress, among others. These issues often involve an enormous number of events, which require, for example, the analysis of a considerable volume of daily reports, e-mails, letters, meeting minutes and drawings.

Also, such disputes usually involve complex technical discussions that require a relevant expertise of the professionals that will decide them as well as the lawyers that control the case strategy.

Moreover, some disputes occur during the construction phase, demanding an expedited solution.

Experience shows that regular courts are not appropriate to deal with such disputes, especially because: (a) judges are usually not specialised or even familiarised with construction projects, relegating decisions almost exclusively to the assessment of a court appointed expert; (b) regular courts are admittedly slow, particularly due to the backlog of cases and excessive attributions; (c) almost infinite possibility of appealing against the decisions handed down in such proceedings, delaying the final resolution of the dispute; and, most importantly to construction disputes in civil law countries (d) the body of court appointed experts is not as diverse or qualified as the expert options an arbitral tribunal enjoys.

In this context and since the recent laws in Latin America allowed the use of ADRs in public contracts, it has become increasingly commonplace for the stakeholders of construction projects to insert arbitration clauses into their contracts to avoid regular courts and the above-mentioned problems connected with.

Do you think covid-19 and its consequences will inform parties’ behaviour when entering into construction and engineering contracts in the future?

It is undeniable that the covid-19 pandemic had a major impact in the construction industry and affected the way the parties negotiate and manage construction agreements.

The delays and shortages triggered by the pandemic caused the parties to find solutions to try to mitigate the related risks.

In this sense, most of the construction contracts post pandemic establish provisions addressing: (a) material and labour unavailability; (b) material price escalations; (c) safety measures; (d) excused delay and force majeure, as well as the appropriate remedies (cost and time, only cost or only time), among others.

The pandemic has also changed the way the parties behave during the construction phase, including improvement of the communication between the parties, creation of routines to monitor costs and budget and preference to early purchase of material and equipment, which can significantly impact pricing and pacing of the project, and as a consequence, significantly impact the provisions to be negotiated by the Parties.

As a partner of Madeira, Valentim & Gallardo Advogados, what are your main priorities for the firm’s development over the next couple of years?

Our firm, as a highly specialised law firm, shall always concentrate on the improvement and qualification of our team, as we have been doing since the establishment of Madeira, Valentim & Gallardo Advogados.

Moreover, our firm shall continue to prioritise the adoption of a meritocratic approach, building and fostering engagement among our associates as well as encouraging leadership.

We believe that construction lawyers benefit from a wide range of experiences within the different phases of the contracts, from negotiation to dispute, and we aim to engage our team in all of these phases, providing our clients with lawyers that can truly understand their businesses and needs.

What is the best piece of career advice you’ve ever received?

The best piece of career advice I’ve ever received was about the importance of being humble and putting the clients first to be successful and respected.

As a young lawyer working in one of the largest firms of Brazil, it was almost inevitable to feel that I was on top of the world and above everything and everyone.

At that time, my father, a general practitioner with more than 50 years of experience, called me for a private, revealing conversation that from then on guided my professional career.

During that conversation, he told me that I couldn’t be dazzled by my professional position no matter where I was working and what position I was holding and that to have the respect for my peers and clients I had to be always humble. Also, he told me that the most important thing for any professional is to always prioritise its clients.

All of these pieces of advice have affected me as professional and an individual but also how I approach my practice and others with whom I interact.