This recognition reflects Dr. Mastrandrea’s expertise and his commitment to excellence in arbitration and dispute resolution, and highlights HKA’s ability to support our clients through diverse complex disputes.
The SCCA’s Arbitrator Roster comprises highly qualified professionals who meet rigorous admission criteria. Its members play a pivotal role in advancing the Alternative Dispute Resolution (ADR) industry within the Kingdom of Saudi Arabia and the region, whilst preserving due process and maintaining the highest ethical standards.
Franco is a Chartered Arbitrator and Chartered Quantity Surveyor with over four decades in the construction industry. Having served as an expert in more than 50 international disputes involving project management, delay, and quantum-related issues, he is widely recognised for his expertise in complex construction matters. Franco regularly acts as dispute avoidance practitioner, mediator, expert determiner, adjudicator, or arbitrator.
Husam Gawish, Partner and Head of Operations Saudi Arabia said, “Franco’s inclusion in the SCCA’s esteemed roster of arbitrators is a remarkable accomplishment and a testament to HKA’s commitment to advancing SCCA’s mission.”
Wendy Robinson joins the Forensic Accounting and Commercial Damages team in Dubai as Director
23rd March 2025
HKA is delighted to announce the appointment of Wendy Robinson to its Forensic Accounting and Commercial Damages (FACD) team in Dubai.
Wendy Robinson is a seasoned leader in eDiscovery, having built and developed practices from the ground up at Deloitte, KPMG, and Accuracy, positioning teams for strong competitive success in the Middle East. She has worked in Forensic Technology for more than 19 years and has assisted legal teams on some of the regions’ most significant commercial disputes and investigations, helping to collate and review vast troves of electronic documentation and communications to pinpoint the relevant material.
Committed to staying at the forefront of technological advancements, Wendy completed a Post-Graduate Certificate in Artificial Intelligence in 2023-2024, enhancing her technical knowledge and gaining formal recognition in this evolving field. The practical, up-to-date skills acquired enable her to drive sales and deliver innovative AI-based solutions. She has also successfully led diverse teams of up to 25 professionals, fostering excellence in execution and delivery.
“We are delighted to welcome Wendy Robinson to our team. With her exceptional leadership in eDiscovery, proven track record in driving growth, and deep expertise in AI-driven solutions, she brings invaluable insight and innovation to our organization. Her ability to lead high-performing teams and deliver excellence aligns perfectly with our vision. We look forward to the impact she will make and the success we will achieve together,” said Darren Mullins, Partner, Investigations Practice EMEA, Forensic Accounting and Commercial Damages (FACD).
Wendy is a dynamic communicator, adept at translating complex technical concepts into clear, strategic insights that inspire creative problem-solving within her teams and build client confidence during high-stakes disputes and regulatory matters. Leveraging her strong international network, she actively drives business development and sales, significantly expanding revenue streams.
“We are excited to have Wendy Robinson join our team. Her deep expertise in eDiscovery, coupled with her ability to lead high-performing teams and drive business growth, will be a tremendous asset. Wendy’s talent for simplifying complexity, building strong client relationships, and delivering innovative solutions sets her apart. We look forward to the fresh perspectives and strategic impact she will bring to HKA” said Stuart Ells, Partner, Chief Growth and Operations Officer, FACD Lead.
HKA is delighted to announce the appointment of Kirsteen Cacchioli as Principal to its Construction, Claims and Expert Services team in London.
Kirsteen has over 20 years’ experience in construction dispute resolution, specialising in analysing contractual obligations, conducting commercial reviews, drafting reports and position papers, supporting quantum experts, and preparing documents for all dispute resolution forums. Her experience includes assisting in disputes involving remedial cladding schemes, hospital projects, commercial office developments, motorways and road improvement projects, rail projects and flood alleviation schemes.
“We are pleased to welcome Kirsteen to our team. With her extensive experience in quantum analysis, dispute resolution, and contract assessment, she brings invaluable expertise to our clients and projects. Her ability to navigate complex claims and collaborate seamlessly with multidisciplinary teams will further strengthen our capabilities. We look forward to her contributions and the positive impact she will make,” said John Jones, Partner, Construction, Claims and Expert Services.
Kirsteen has played a pivotal role in managing complex contractual disputes on a variety of construction and infrastructure projects. From residential developments to major hospital projects and infrastructure schemes, she has meticulously reviewed the contractual matrix and project documentation provided in respect of various substantial cost claims and has supported quantum experts in the preparation of expert reports and joint statements for adjudication, arbitration and litigation. Whether working on buildings, industrial & manufacturing, transportation & infrastructure, or power & utilities, Kirsteen has demonstrated a keen analytical ability and a methodical approach to resolving claims. Her contributions ensure well-supported assessments that help shape fair and commercially sound outcomes.
Kirsteen said, “I am thrilled to join HKA and contribute my experience in construction dispute resolution to a diverse range of projects. I look forward to working collaboratively with my colleagues globally to ensure our clients receive the highest level of excellence and value.”
The potential – and possible pitfalls – of using artificial intelligence (AI) in arbitration and dispute resolution work is a hot topic. The subject was a talking point during Dubai Arbitration Week in November, where HKA hosted a panel discussion: Unleashing the AI Expert Superpower.
The theme highlighted how AI could assist legal and dispute experts, particularly in freeing their time by doing the hard work of scrutinising casework documents. During the discussion, a panel of technology and dispute resolution specialists provided a live demonstration that showcased the transformative power of AI and machine-learning Large Language Models (LLMs).
While AI can improve efficiency by handling massive volumes of data, the experts agreed that one thing is beyond its capabilities. It cannot replace human analysis and expert opinion. Rather, AI is a tool that needs to be tamed and molded, an enabler for better decision-making.
HKA’s ‘Unleashing the AI superpower’ event
A superpower is born
Clare Lavin is a Partner in HKA’s Dubai-based EMEA forensic accounting and commercial damages team, which specialises in disputes and investigations work, and she moderated the panel discussion.
Setting the context of the debate, she said:
“AI is becoming a powerful tool that is reshaping many industry sectors, economies and societies. It has the potential to solve complex problems and automate tasks. The question is, how do we superpower our experts to bring the best of them to our projects? And how, in turn, can this assist lawyers in their strategies and case management?”
David Blayney’s dual roles as a KC at Serle Court and also CEO of Associo, a collaborative software platform, give him insight into both aspects of the challenge. His interest in AI is how it can assist practically in day-to-day casework through better data management.
“I’m looking at the problem of collecting evidence, managing teams and avoiding the duplication of work when preparing cases,” he said. “When ChatGPT arrived, it opened up exciting possibilities. One thing AI is fantastic at is translation from one format to another, so you can use your software tools together more effectively. We developed our own software platform, Associo, that acts as a central hub where analysis can be worked up.”
Use of AI in construction dispute arbitration
Arbitration in construction disputes is fertile ground for deploying AI, believes Alison Eslick, a Senior Associate at law firm Reed Smith. She focuses on arbitration in major infrastructure and construction projects and is a self-confessed “skeptical person and a traditional lawyer who never cuts corners.”
However, Alison is a cautious convert to AI, despite the challenges the fledgling technology poses to the legal profession.
“I have to admit that when I started using ChatGPT I realised that AI was a tremendous opportunity for us to manage our cases more efficiently and to focus on the matters that count.”
Her firm has completed trials and already is using the ‘public’ ChatGPT along with a private, secure AI product. A key point she raised during the discussion was about transparency in how AI is implemented and the importance of ensuring accuracy.
“If we use AI for clients, we need their consent and must record it on our timesheets, so we are transparent about it. We check every output and at this point we are being very cautious,” she said.
Transparency about using AI
Darren Mullins, a Partner at HKA who specialises in financial crimes, cyber investigations, digital evidence recovery and data analytics, agreed on the importance of transparency.
“You have to be able to say where AI is being used and what quality control processes you undertake – and explain this succinctly to an arbitrator or judge. The integrity of information has to be maintained,” he said.
Increasing the application of AI in arbitration work will probably mean a shift in traditional corporate team set-ups, he predicts, with tech experts working more closely alongside their lawyer colleagues.
“Tech teams are no longer the ‘nerds down the corridor’,” Darren pointed out. “A collaborative approach between teams helps to ensure the questioning of the information and the quality control methodology is correct. At the same time, lawyers and experts are going to have to upskill on how AI is utilised.”
Otherwise, as he pointed out, AI risks going the way of many other software tools and becoming unfit for purpose. “We need to put a leash on AI a little. If left to run, it could bolt and be hard to keep a check on.”
By helping to improve time efficiency and accuracy through rapid and detailed data analysis, AI is a new power for experts. A superpower, if you like. Dimitrios Tousiakis, a Partner at HKA who specialises in construction disputes relevant to delay, explained further:
“AI will assist experts in making more informed decisions, especially in construction disputes where the amount of data is huge. AI can also help to reduce human error and human bias. Having a tool to automate processes will save a lot of time, but you have to do it carefully and focus on value-added tasks.”
The positive powers of AI could be multiplied when combined with other technologies, as Dimitrios explained:
“The construction industry uses well-established Building Information Modelling (BIM) software to manage projects. Imagine how BIM and AI can combine – the potential is impressive.”
Finding the right tools for the job
During the session, the panel demonstrated AI platforms in action. One version was an AI provider Merlin being trialled by HKA. Darren explained:
“We can maintain data securely, with encryption keys and secure access. It brings generative AI and makes use of LLMs. This is enabling us to ‘superpower’ our experts and lawyers. We are already beginning to see the benefits.”
The panel demonstrated how Merlin’s “Discovery Partner” and Associo can combine to break down a case into various issues and provide an ‘end-to-end process’. The real-life example they chose to be scrutinised with AI involved a delayed high-rise residential building project.
“The project experienced multiple issues, including on design, approvals and with subcontractors,” said Dimitrios. “For this example, we uploaded about 1,000 documents from the project to carry out analysis knowing what the issues were, so we can see how AI could assist. One aim was to gain a brief overview of the claim.”
The audience was shown how the most relevant documents could be identified in answer to the question: ‘Summarise contractor extension of time claims and list delay of events claims.’
“You can find the impact of time delays on the contract. In addition, next to every sentence that AI generates are references, so you can trace the sources of the information,” continued Dimitrios.
However, he stressed that AI-generated answers won’t necessarily provide a complete picture.
“It is definitely not everything, but it is a good start. It allows you to ask detailed questions regarding certain issues and you can tell AI to focus on certain events.”
Alison considered whether there is an ethical requirement for arbitration lawyers to disclose their use of AI in preparing legal submissions. Referring to the Silicon Valley Guidelines on the Use of AI in Arbitration, Alison explained that legal counsel is generally not obliged to disclose their AI use to the arbitral tribunal or opposing counsel:
“If I used AI to prepare my submissions, just as I would use LexisNexis to look up cases or go into a physical library to look up a textbook. I wouldn’t necessarily have to disclose my methodology in preparing my submissions.”
Darren offered this analysis of AI capabilities: “If you have the depth of information, you will get a good quality answer. Otherwise, the answers you get back could be very generic.”
Can we trust what AI creates?
Darren answered this vital question: “It won’t give you everything. At the end of the day, a human must look at the evidence to make sure all the information is relevant. You could say AI currently is an ‘80%’ tool.”
Dimitrios concurred: “You should verify that it is checked in an independent and neutral way. Use AI like an assistant.”
David added: “Imagine a case where you have thousands or even millions of documents. You can search according to topic chronology and AI can form an understanding of what is in those documents in a way that’s relevant to the question being asked of it.”
Fine-tuning the AI focus
The live example highlighted how AI-enhanced processes can improve productivity and accuracy for Experts. As Dimitrios demonstrated, you can ask AI to focus only on documents that refer to one particular event, in this instance it was delay events related to design and procurement of the doors of the building project.
This narrowed the information down to 200 documents and provided a detailed chronology.
An audience member asked: “I think it’s really important that as lawyers, we don’t miss anything. We would rather be over-inclusive than miss something. I’m wondering whether your live example is just for retrieval – is the mapping of claims handled using AI as well or does the user have to link documents to policies?”
David answered: “The mapping can potentially be done with AI. But we still see that as involving a human judgment as to what evidence is best.”
Output depends on the quality of the input
The panel emphasised that the output you can generate with AI is likely to be only as good as the input. To an extent, that comes down to the documents you scan in and how you interrogate them.
Darren said: “We’re currently running a case that has a significant number of date-stamp documents and hand-annotated notes. You have to understand where there are lines made by people through parts of documents. From our use of Merlin, we are getting strong analysis back. I know that the Merlin team is working on a proof of concept with a US-based health department, where documents contain doctor’s handwritten notes.”
He added that his approach to LLMs is to be open-minded as it is expected to handle multiple legal cases across many industry sectors, where there can be a huge number of different data sets.
The panel concluded by agreeing that the potential of AI in the disputes arena has to be tempered with careful control and transparency in its usage. There was a sense that now is the time to seize the initiative, so AI becomes a superpower for good in disputes and arbitration work.
Interested in finding out more about how experts are using AI in dispute resolution? Fill in the form below to get in touch.
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HKA opens new office in Riyadh’s Kingdom Centre and focuses on regional growth
17th February 2025
HKA has demonstrated its commitment to growth in Saudi Arabia and the Middle East by moving into a prestigious new office in the iconic Kingdom Centre Building in Riyadh.
The new office on the 16th floor of the 99-storey landmark tower signifies the next step of growth for HKA in its two-decade presence in Saudi Arabia with the intent of becoming a hub for talented resources and a diverse collaborative team within the Kingdom.
“As well as attracting global experts to the region, we have a strong focus on finding homegrown talent to nurture future leaders of HKA and the construction sector,” said Jad Chouman, HKA’s Partner and Head of Middle East. “Our new office will help us attract local and international talent. This, coupled with our ongoing work on ground-breaking and prominent Giga projects and developments, will also inspire the very best talent in our field to join the firm.”
Achieving gender parity is an important element in HKA’s recruitment approach. A significant proportion of the firm’s workforce is women, and it is steadily increasing the number of Arabic speakers it recruits.
Jad continued: “With our growing team permanently stationed in Saudi Arabia and numerous colleagues frequently travelling from the region and our global network of offices, we are delighted to have established the base of our Regional Headquarters (RHQ) in the prestigious Kingdom Centre in Riyadh. The entire team is enthusiastic about this strategic move.”
Emphasising the importance of the new office to the firm’s ambitions, Husam Gawish, Partner and Head of Operations Saudi Arabia, said: “The Kingdom Centre is a fitting new home for us. It goes hand in hand with our growth plans in the country and further afield. This is another high point of our presence in Saudi Arabia that began in 2007.”
The Kingdom Centre move follows the firm gaining regional headquarters (RHQ) status in 2024, which gives it a licence under the Saudi government RHQ programme to work on large, complex public projects. Husam said: “Being one of the very first consultancies in our field to establish our RHQ in the Kingdom adds further strength to our growth strategy as it will involve government sector work alongside our core private sector client portfolio.”
Husam said the firm would continue building on its four main service areas: Construction Claims & Expert Services, Forensic Accounting and Commercial Damages, Forensic Technical Services and Advisory Services.
“We are increasing our activity steadily in all areas as we expand our client base of contractors, employers, private and public sector companies across the Middle East,” he said.
Amanda Clack, Partner and Regional CEO, International said: “HKA is proud of our heritage and length of supporting the vision for Saudi Arabia. We are delighted our new office in the Kingdom Tower is not only a great place to work for our colleagues but puts us at the heart of Riyadh to provide a hub close to, and for, our clients. We look forward to welcoming you.”
In Saudi Arabia, the firm has a second office in Jeddah, as well as regional offices in Abu Dhabi, Dubai and Doha. It has operated in the Middle East for over 40 years.
Clients will be invited to help HKA celebrate the new Kingdom Centre office move later this year.
Media contact:
Name
Jude Wilson-Brown
Title
Marketing and Communications Director Middle East and Africa, International
Empowering Female Experts: Creating a level playing field for change
10th February 2025
To be published in Middle East Consultant and Oath Magazine – February 2025 Edition
HKA Partner, Clare Lavin, recently spoke with Paul Godfrey, Head of Content of Middle East Consultant, on empowering female experts in the disputes field.
For those of us in the disputes world who are committed to gender equality among expert witnesses, the latest figures may not look encouraging. Yet, I have never been more confident that a fundamental shift is already underway.
“As a Partner in the global HKA business providing expert services, and as an experienced practitioner in the Middle East, my perspective on the opportunities for women aspiring to the role of testifying expert witnesses is extremely positive.“
But first, those statistics – courtesy of the annual survey of lawyers by the Equal Representation for Expert Witnesses Pledge. Published earlier this year, the results showed that women were appointed or testified as the sole expert witness in just 9% of the survey respondents’ cases in 2023. And that was a reduction from the year before (from 10%).
This is not unexpected. Significant barriers remain – not least the tendency to appoint (and re-appoint) experts based on their prior experience – and the fact we have started from a low base point of female testifying experts in the first place. The ERE Pledge was conceived just three years ago (by Kathryn Britten and Isabel Santos Kunsman of Alix Partners) as a response to the stark fact that most lawyers had not seen any female expert testifiers or co-testifiers at all in the previous 12 months.
Other findings from the latest survey are more positive and corroborate my own recent experience. Female experts who have taken the stand and are named experts on cases are gaining more recognition for their expertise and contribution. The number of female experts appointed more than 20 times rose from 32% to 36%. There is also evidence that shortlists are becoming more gender-diverse, meaning more lawyers are considering female experts. While 13% still say that no women were considered for their cases, that is a welcome fall from 20% in 2022.
“There is a ready pipeline of female expertise as women lay the groundwork for their careers: 97% of female respondents said they regularly drafted expert witness reports or played a major role in their preparation. The proportion aspiring to provide written or oral expert evidence for the first time rose to 88% (up from 79% in 2023). This is extremely encouraging to see.“
Raising the profile of these up-and-coming women experts is therefore crucial to helping them make that breakthrough. That is why at HKA, we make a point of naming lead assistants in our expert reports and attaching their CVs. They won’t co-sign the report or be called to give evidence, but I want to lead on this and let people know there are other competent and aspiring experts (male and female) behind my report. It is very much a team effort, after all. No expert can do all the work for every case, though ultimately, we must formulate and stand behind every opinion in our reports. Crediting the contribution of your assistants helps get people’s names out there, and I encourage all firms to do this.
Getting that initial testifying experience is a challenge for every younger expert. Given that bar is somewhat higher for female experts, our idea is to profile them in videos so viewers can see our colleagues setting out their capabilities and begin to get to know the person and expertise behind a less familiar name.
Standard practice now in HKA proposals is to offer a choice of expert to the client. We will always put the right expert forward for the case, but by versioning proposals with senior and more junior experts we can provide a choice. Clients can decide if the emerging expert is suitable for their case.
The ERE initiative is a sister pledge to the Equal Representation in Arbitration Pledge (ERA), which has proved highly effective since its launch in 2015. Further, more than 1,580 individuals and 130 organisations across 50 countries have signed up the ERE Pledge – a 30% increase over a year. HKA is a signatory, and I sit on both the ERE global steering committee and the ERA subcommittee for the Middle East.
I have seen more female experts emerging in the Middle East over recent years. Back in 2020, it was difficult for instructing lawyers to put together a diverse panel of experts. But like HKA, many firms have policies and targets for diversity and inclusion. This is encouraging more women to pursue this career path while driving a change in attitudes and a greater willingness to consider and appoint female expert witnesses.
Yet, lawyers have told the ERE that they don’t know where to look for female talent. A directory of female experts will help meet that need, and this is another initiative for 2025 by the ERE Pledge. Women need that visibility – enabled by enlightened employers – but there also has to be buy-in from those who are procuring our services.
And barriers remain to be broken. There’s a grain of truth in the joke that clients associate grey hair with expertise and wisdom. Women experts tend to be younger, and they still face the risk aversion of instructing lawyers and residual bias – unconscious and conscious. The suggestion by a survey respondent that women may not be suitable for cases with tight deadlines due to their family obligations does not sit well with me. It is outdated. I believe this bias is fading with a ‘changing of the guard’ and growing recognition at all levels of the profession and business that men and women are all real people trying to be present for their families while fully committed to their work and their careers.
I can see those female expert witnesses of the future coming through, and I’m excited by the prospect. As one advocate of gender parity memorably put it to me once, women expert witnesses are no longer pushing at a closed door, but walking through, leaving it open for others to follow. The opportunity is there. There’s actually never been a better time for women in our field to seize that opportunity.
Big changes are coming for businesses regarding how they impact nature. Nearly 200 countries have pledged to halt and reverse nature loss by 2030. This is being driven by international agreements and the increasing recognition of nature-related financial risks.
Why this matters
The International Sustainability Standards Board (ISSB) may soon require companies to report on their impacts on nature.
The UK’s finance minister has directed the Bank of England to consider how risks related to nature could affect the economy.
This means companies should anticipate new, complex reporting requirements.
How we got here
In 2017, the Taskforce for Climate-related Financial Disclosures (TCFD) established a system for reporting climate-related financial information.
In 2023, the ISSB released its first two standards, IFRS S1 (general sustainability information) and IFRS S2 (climate-related information).[2]https://itpn.global/wp-content/uploads/2024/11/Final-Report-Progress-Achieved-and-the-Path-Ahead-TPT.pdf
Moving towards new standards
In June 2024, the IFRS Foundation took over the TPT’s reporting materials. The rules in IFRS S2 are similar to the TCFD recommendations, meaning companies using ISSB standards will also be following TCFD.[3]https://itpn.global/wp-content/uploads/2024/11/Final-Report-Progress-Achieved-and-the-Path-Ahead-TPT.pdf[4]https://www.ifrs.org/news-and-events/news/2023/07/ifrs-foundation-publishes-comparison-of-ifrs-s2-with-the-tcfd-recommendations/
Companies are transitioning from TCFD to ISSB and will start including sustainability-related financial information in their regular reports.
By September 2024, 30 countries, representing a large portion of the global economy, stock market, and greenhouse gas emissions, were planning to use ISSB standards.[5]https://www.ifrs.org/content/dam/ifrs/supporting-implementation/issb-standards/progress-climate-related-disclosures-2024.pdf
Focusing on consistent reporting
The goal is to ensure that ISSB standards work across different countries to create consistent reporting.
In 2024, the ISSB agreed to research reporting on biodiversity and ecosystems.[6]https://www.ifrs.org/news-and-events/news/2024/04/issb-commence-research-projects-risks-opportunities-nature-human-capital/
Why nature matters
While climate change plans are important, they don’t address all the reasons why nature is being lost.
The Kunming-Montreal Global Biodiversity Framework (GBF) commits governments to stop and reverse biodiversity loss by 2030.[7]https://www.unep.org/resources/kunming-montreal-global-biodiversity-framework
Goals 14 and 15 of the GBF require businesses to align their activities and report on their risks, impacts, and dependencies related to nature.[8]https://www.cbd.int/gbf/targets/14[9]https://www.cbd.int/gbf/targets/15 This will encourage sustainable production.
The Network for Greening the Financial System (NGFS) has highlighted that nature-related risks could significantly impact the economy.[10]https://www.ngfs.net/en/press-release/ngfs-acknowledges-nature-related-risks-could-have-significant-macroeconomic-and-financial
Ignoring these risks could be detrimental to both individual companies and the overall financial system
New reporting requirements
The ISSB may soon mandate companies to report on nature-related issues.
The TNFD currently offers a voluntary framework for managing and reporting on these issues.
There are suggestions that the UK government should make TNFD reporting mandatory and integrate it into the TPT framework.
A recent UK Parliament Environmental Audit Committee Report has noted that the UK should not delay implementing mandatory TNFD reporting, despite international standards being important.[11]https://publications.parliament.uk/pa/cm5804/cmselect/cmenvaud/277/summary.html
Get ready for changes and seek opportunities
Businesses should prepare for these upcoming changes.
Companies that act early can benefit by reporting transition plans, identifying new market opportunities, and enhancing their reporting skills.
Six key actions for businesses
Prepare for potential new mandatory rules on reporting nature-related impacts.
Develop transition plans that address both climate change and now nature loss.
Assess dependencies, impacts, and risks related to nature.
Adopt the TNFD framework as a guide for reporting.
Seek market opportunities by taking a leadership role.
Monitor policy changes and government initiatives.
How HKA can help
HKA provides advisory and dispute services to help companies and governments prepare for and respond to environmental disputes. They have access to leading environmental experts. Additional information on HKA’s services can be found here: https://www.hka.com/industries/environment-climate-change/
Dr Alex Lee has over 25 years of experience in environmental consulting. He leads Environmental advisory and dispute services at HKA. He is a Chartered Geologist and Scientist and a Specialist in Land Condition (SiLC). He is a critical thinker and industry leader with a history of influencing and writing UK guidance. He has been cross-examined in litigation and regularly provides expert opinion, analysis, and advice within dispute values of up to £700 million.
HKA is delighted to announce Francois Spies has joined HKA as Technical Director, based in the Glasgow office.
Francois Spies specialises in multi-discipline engineering project management and is a professionally registered construction project manager, construction contract specialist, and dispute resolution practitioner. Francois has over 25 years of experience in the heavy engineering project and construction sector, the majority of which has been in the mining and renewable energy sectors.
Francois has acquired a wealth of knowledge and expertise from involvement on major, complex projects spanning buildings, infrastructure, transportation, industrial, mining, minerals and metals, chemicals, power and utilities sectors. This experience has been gained with projects and participants located in Africa, North and South America, Central and South Asia, the UK, Europe, and Australia in ‘Employer’, ‘Contractor’, and ‘Consultant’ roles, equipping him with a unique ability to deliver objective and informed interpretations of events.
“We are excited to welcome Francois to the team where his expertise will further enhance our project advisory and dispute resolution services. His extensive knowledge and proven track record in the construction and engineering industries make him an exceptional addition, and we are confident his contributions will be instrumental to our client’s success,” said Paul Mansell, Partner, Forensic Technical Services.
Beginning his career in South Africa’s mining sector, Francois brings extensive experience in multidisciplinary heavy engineering design, project planning, estimating, and budgeting, as well as cost management, procurement, contract administration, and construction and commissioning oversight. His expertise also encompasses overarching project risk, quality assurance, and health, safety, and environmental management.
In 2017, Francois established himself as a consultant specializing in commercial, contractual, claims, and dispute management. Since then, he has provided strategic and project-level services, cementing his reputation as a trusted expert in the field.
Francois said, “I am thrilled to join HKA and be part of a leading, expert team. I look forward to using my experience across complex projects and sectors to further support our clients in achieving successful outcomes.”
Exploring the first decline in six years, RepRisk has published a leading report on the significant shifts taking place within the industry on greenwashing. In their report, they have identified two important findings:
Overall Decrease in Greenwashing Cases: For the first time in six years, there has been a decline in the total number of greenwashing cases.
Increase in High-Risk Cases: Despite the overall decrease, high-risk greenwashing cases have surged by over 30%.
Drilling down into the details, RepRisk has highlighted some important trends by sector and region. Sectoral shifts highlighted the ongoing challenges the Oil and Gas sector most frequently associates with greenwashing. The food and Beverage sector is under rising scrutiny, with notable cases like Coca-Cola facing lawsuits. The Banking and Financial Services sector saw a 20% global drop in climate-related greenwashing incidents.
Regionally, RepRisk flags Europe and North America as continuing to have the highest number of greenwashing incidents, while the EU saw a 20% decline in greenwashing cases. However, overall, Europe and North America identified high-severity incidents rising by 27%.
High-severity greenwashing cases are driven by:
Major Misrepresentations: Companies making bold, false claims about their environmental impact or sustainability practices.
Legal Actions: Many high-severity cases have led to lawsuits and regulatory actions, particularly in sectors like Oil and Gas and Food and Beverage.
Consumer Backlash: There has been a notable rise in consumer awareness and backlash against companies caught in high-severity greenwashing.
Regulatory Scrutiny: Stricter regulations are being enforced, requiring companies to provide credible evidence for their environmental claims, leading to increased accountability.
High-severity greenwashing cases often involve several deceptive tactics, including:
Selective Disclosure: Highlighting only the positive aspects of their environmental practices while omitting negative impacts.
Misleading Labels: Using terms like “eco-friendly” or “green” without proper certification or evidence.
False Certifications: Displaying fake or misleading environmental certifications to gain consumer trust.
Complex Jargon: Using technical or scientific language to confuse consumers and obscure the truth.
Token Actions: Implementing minor, superficial changes and presenting them as significant environmental achievements.
These tactics are designed to create a false impression of sustainability and can lead to significant legal and reputational consequences for the companies involved.
Growing and intensified regulatory scrutiny, particularly in the EU, is driving the decline in greenwashing cases in which new regulations require companies to provide credible evidence for environmental claims, leading to increased accountability. However, RepRisk equally warning of the dangers of greenhushing, where companies understate their sustainability efforts to avoid legal risks.
The growing body of regulations are now requiring companies to provide credible evidence for environmental claims, leading to increased accountability. Help is at hand, with common sense strategies to address the risk. To avoid greenwashing, companies can take several key steps:
Align Actions with Commitments: Ensure that your sustainability commitments are backed by concrete actions and investments. This includes setting and working towards science-based targets[2]How companies can protect themselves from greenwashing
Verify Claims: Use third-party verification to substantiate your environmental claims. This can involve using carbon accounting platforms to accurately capture and report data.[3]How companies can protect themselves from greenwashing
Engage Stakeholders: Involve stakeholders in your sustainability initiatives. This includes educating employees, suppliers, and consumers about your environmental efforts and progress.[4]How companies can protect themselves from greenwashing
Avoid Misleading Claims: Refrain from making false or exaggerated claims about your environmental practices. Ensure that all marketing and communication accurately reflect your sustainability efforts.[5]How companies can protect themselves from greenwashing
By following these principles, companies can build trust with consumers and genuinely contribute to environmental sustainability.
To discuss how HKA Environment and Climate experts can help you in times of dispute or advisory, please get in touch with Dr Alex Lee (alexlee@hka.com) or Andrew Walters (andrewwalters@hka.com). They would be delighted to speak with you.
About the Author
Andrew Walters is a highly experienced Environmental Lawyer with over 25 years of experience in an extensive range of projects and policy work in the public and private sectors. He is actively involved in both disputes and advisory.
The urgent need for climate action in the building and construction sector: Scrutiny, regulation and litigation are on the increase
Scientific evidence and extreme weather events are increasingly stark. All sectors of commerce and the globe face heightening risks from climate instability and other environmental issues. The building and construction sector is highly exposed to direct and indirect impacts. Scrutiny, regulation and litigation are on the increase.
Energy demand and activities in the building and construction sector contribute to over a fifth of global carbon emissions. Just a 1% increase in those emissions in 2022 equated to 10 million more cars circling the Earth’s equator. [1]https://www.unep.org/news-and-stories/press-release/not-yet-built-purpose-global-building-sector-emissions-still-high. There is no credible path to tackling climate change or biodiversity loss without a fundamental shift in the industry worldwide.
The implications of climate and environment are already being felt in the planning and delivery of infrastructure and capital projects. But our Environment and Climate team is tracking a rise in disputes across a widening front – from on-site disruption and design failures to contamination, including emerging contaminants, and from energy generation to issues of greenwashing and declining biodiversity.
Disruption related to climate change – adverse weather impacts
Our research – through HKA’s integrated CRUX programme analysing the causes of conflict on distressed projects – points to some of the disruption related to climate change (Figure 1). As might be expected, more claims and disputes are blamed on adverse weather conditions in sectors with projects on exposed sites or traversing large geographical areas (such as offshore wind, and highways) when compared with commercial buildings or manufacturing facilities on more self-contained sites.
Figure 1 – Percentages of projects with related claims or disputes
The CRUX dataset tracks capital and infrastructure projects over the last seven years. In that time, extreme weather events caused conflicts on more than one in seven (13.3%) of all projects in the Americas – seven percentage points higher than in the rest of the world. (Figure 2)
Figure 2 – Percentage of all projects with related claims or disputes
When unforeseen physical conditions are also considered, more than a fifth of projects worldwide were affected. Widening the cluster of causes further to include site access restrictions and late material deliveries – which can be attributable at least in part to environmental factors – the proportion disrupted exceeds 40% (see Figure 3). Africa, the Middle East and Asia were most heavily affected, Europe the least.
Disruption of global supply chains, which led to claims over late deliveries on around one in 10 projects, is often due to natural events. Tropical storms, for example, triggered force majeure provisions 10 times on a long-term LNG (liquefied natural gas) project in the Americas. Local snowfall and landslides also had an impact.
In the UK alone, research found that unpredictable weather extended project timelines by up to 21%, and in 2021, industries in which workers are exposed to the elements lost £94 million due to extreme heat.[2]https://www.marsh.com/en-gb/industries/construction/insights/climate-change-and-impact-on-construction.html Meanwhile, we have seen construction delays due to flooding on projects from Australia to South America.
Figure 3Percentage of projects affected by environmental factors – by region and globally
Contracting parties have been invoking force majeure clauses to avoid liability, with mixed results. Expert input from weather attribution scientists is needed to establish if the burden was beyond a party’s reasonable control. This can be complex and challenging. As extreme events become more frequent and, perhaps predictable, parties need to focus on how contracts define responsibility under force majeure.
Depending on the severity of the weather event’s impact, along with other disruptive factors, the time extensions sought on projects where it precipitated a force majeure claim or dispute ranged from 9.1% to 69.2% of planned schedules.
Extreme weather events are also already giving rise to more negligence claims for design failure – for instance, to withstand flooding or high winds, and in material selection.
(Often) unforeseen contamination is a traditional source of dispute
Unforeseen contamination is a traditional source of dispute. Legal and financial obligations to remediate pollution or contamination arise from pollution incidents breaching statutory rules, but also civil disputes involving damages for common law nuisance or negligence, and contract breaches. We estimate that around 60% of cases concern alleged violations of indemnity, failures in clean-up performance or negligence. Fears of higher penalties, more rigorous enforcement, and extended regulations are driving these actions.
Pressure from project promoters to start works and speed completion compresses the pre-construction phase. Environmental due diligence and site investigation are often poor. We see desirability bias or otherwise a failure to account for likely contingent liabilities and obligations when scoping remediation. Another factor is the inadequacy of commercial or property agreements, including environmental indemnities, and price reductions or adjustments designed to transfer liability.
The nature and extent of clean-up required depends on the circumstances and standard of remediation required by the relevant statute, court order or contract. Damages have traditionally focused on investigations, removal, treatment or containment of the contaminants, fines and monitoring. Complementary or compensatory works to offset interim losses may also be required. However, such a bottom-up analysis can underestimate actual losses by not considering the potential reputational impacts, lasting competitive disadvantage, or loss of market share. We are seeing more comprehensive approaches to estimating damage, and with our economics team, have factored share value into these calculations.
Emerging contaminants are increasing
Lawsuits related to alleged exposures to ‘forever chemicals’ are increasing. These per- and polyfluoroalkyl substances (PFAS) are a diverse and large group of synthetic fluorinated organic chemicals with a vast range of industrial, professional and consumer uses. PFAS are persistent in the environment and hard to remediate. Plumes can travel far further than conventional hydrocarbon contamination. Regulatory PFAS guidance is rapidly evolving to cover a broader range of specifications, and further decreasing what are deemed safe concentrations. Over 6,400 PFAS-related lawsuits have been filed globally since 2005.[3]www.avivainvestors.com/en-gb/views/aiqinvestment-thinking/2023/03/forever-chemicals/ Health-related costs in Europe are estimated at €52-85 billion a year.[4]https://www.pfassciencepanel.org/true-cost-of-pfas
Site construction can mobilise PFAS and introduce new pathways for exposure and receptors (including a building’s occupants). It has been shown that the porous nature of concrete can allow PFAS to bind and slowly release over years or decades.[5]https://www.researchgate.net/publication/358170153_Release_of_perfluoroalkyl_substances_from_AFFF-impacted_concrete_in_a_Firefighting_Training_Ground_FTG_under_repeated_rainfall_simulations PFAS have been found on many development sites, but there can be information gaps in affected sites’ historical records. Arguments over responsibility are arising and stalling developments.
Developers face significant unexpected costs and enforcement. Insurers are also receiving claims and coverage actions from policyholders seeking defence and indemnity for PFAS-related claims. Such insurance can now be hard to secure. PFAS are already a hot topic, and we foresee a further rise in insurance disputes over coverage and retrospective liability.
Carbon footprints jeopardise planning consents
Increasingly, climate change is a material consideration in planning decisions, prompting challenges to new road, air and national infrastructure. Projects increasingly also need society’s permission – a social licence to operate.
HKA has recently been involved in several investor-state arbitrations over developments that failed on grounds related to climate change. The Energy Charter Treaty (ECT) was introduced to promote international energy cooperation and the security of hydrocarbon energy supplies. It provides protection for energy investments, including safeguards against expropriation and unfair treatment. The agreement came into force in 1998. Given its primary focus on oil and gas, however, shifts in global energy and environmental policy have seen many countries consider withdrawal. In 2020, the ECT protected around 51 coal power plants at risk of becoming stranded assets under the Paris Agreement’s scenario for limiting global warming.[6]https://www.iied.org/sites/default/files/pdfs/migrate/17660IIED.pdf An estimated €345 billion of fossil fuel assets in the EU, UK and Switzerland are currently protected.[7]Olivier Moldenhauer, Nico Schmidt, “ECT data analysis: results and methods”, Investigate Europe, 23 February 2021 https://www.investigate-europe.eu/en/2021/ect-data/
While we have been involved in presenting states’ arguments for integrating climate obligations in the context of the ECT and specific disputes, the extent to which these are taken into account rests with the arbitrator. Meanwhile, we advise those considering future investments within countries that have withdrawn, or soon will, from the treaty, to secure protection, and alternative treaties or contractual protection mechanisms. As the resolution window under the ECT’s neutral dispute forum narrows, disputes should be raised and arbitration sought promptly.
Evolving Environmental Litigation
As climate change litigation has rapidly evolved, cases involving greenwashing have seen changes in their recent trends.
Greenwashing by companies and governments is seen to project an eco-conscious image not supported by meaningful reductions in environmental impact. As demand for environmentally friendly and sustainable goods and services has grown, so has the prevalence of greenwashing, whether of company credentials, products or services.[8]Greenwashing: The Lawyers Guide to Environmental Misrepresentation (2023). Inside Practice The risk of litigation against such misrepresentation remains high even if the number of actions is no longer increasing.[9]https://www.reprisk.com/research-insights/reports/a-turning-tide-in-greenwashing-exploring-the-first-decline-in-six-years?msclkid=09bd8a3c639b157785a3ed003473d612 For the first time in six years, there was a decline in greenwashing cases in 2023-24, of 12%. The fall was higher (20%) in the EU’s banking and financial services sector, most likely due to stricter regulations. However, overall, the number of cases graded as ‘high-risk incidents’ surged by more than 30%. Greenwashing class actions are also becoming more complex as they address corporate pledges on carbon neutrality and long-term sustainability.[10]https://globallitigationnews.bakermckenzie.com/2024/07/31/united-states-navigating-the-new-rise-of-greenwashing-litigation/
Legislation will spur further litigation. As countries strive to meet environmental commitments, the construction and engineering sector is a regulatory target. Companies must consider the rapidly evolving and multifaceted regulations around greenwashing before making claims regarding the sustainability of development projects and constituent materials. Within the EU, important anti-greenwashing regulations on the horizon include the Green Claims Directive, currently under negotiation, and the Empowering Consumers for the Green Transition Directive, due to be transposed into national laws by March 2026.[11]https://www.inhouselawyer.co.uk/legal-briefing/esg-horizon-scanning-what-to-expect-in-2024/
With requirements for transparent corporate disclosure also on the increase, greenwashing is a fertile area for potential disputes, not least over material selection and supply chain promises.
The European rules aim to spur litigation and deter environmental offences that mostly go unpunished under existing EU and national legislation.[17]Crime and punishment – EEB – The European Environmental Bureau High-emission industries and those that cause severe or widespread damage to the environment will be targets. In June 2024 the EC also adopted a first-of-its-kind regulation on nature restoration. Measures are to be put in place to restore at least 20% of the EU’s land and sea areas by 2030, and all ecosystems needing restoration by 2050.[18]Crime and punishment – EEB – The European Environmental Bureau New biodiversity laws are already bringing government and the construction sector into conflict – for example, in the UK, under Biodiversity Net Gain,[19]https://www.gov.uk/government/collections/biodiversity-net-gain and nutrient neutrality in England.[20]https://www.local.gov.uk/pas/topics/environment/nutrient-neutrality-and-planning-system We are seeing a rise in biodiversity-related disputes in the construction sector.
Fast-tracking build leads to conflict and litigation
Environmental litigation is poised to expand on these and other fronts. Heightening public and political awareness, stricter regulations, and global efforts to deliver change are increasing scrutiny of infrastructure and capital projects and consequently, the corresponding risk of litigation related to sustainability. The near-universal determination to ‘speed the build’ is compounding this risk and almost invariably self-defeating as it results in many avoidable failures – better to go slow to go fast.
For now, traditional pollution, emerging contaminants and project delay cases continue to dominate. Indemnity and insurance disputes are rising, as are claims over climate-related design failures. Significant sums are in dispute with suppliers on several major projects over increased costs blamed on carbon pricing changes under the EU’s Emissions Trading Scheme.
Balancing environmental, economic and political pressures will be fiendishly difficult for legislators (and others). Developers may find getting planning consent for major infrastructure much harder. Ultimately, more biodiversity disputes are anticipated, along with diverse cases over corporate governance.
The need to anticipate, investigate and mitigate these and other environmental risks can only increase.
Learn more about HKA’s integrated CRUX programme or to discuss how HKA Environment and Climate experts can help you in times of dispute or advisory, please contact Dr Alex Lee (alexlee@hka.com), who would be delighted to speak with you.
About the Author
Alex Lee (MSc, PhD, FGS, CSci, CGeol, EuGeol, ASoBRA, SiLC), Principal Dr Alex Lee has over 25 years of experience in ground risk and remediation. He is a Chartered Geologist and Scientist and a Specialist in Land Condition (SiLC). He is a critical thinker and industry leader with a history of influencing and writing UK guidance. He has been cross-examined in litigation and regularly provides expert opinion, analysis, and advice within dispute values of up to £700 million.
