M&A activity has been hard hit by COVID-19, either deals have stopped, we’re seeing opportunism in the market, or ongoing transactions are coming to some form of post-COVID completion. Any market volatility tends to lead to disputes, although the nature of the disputes changes.
In this webinar, Jonathan Humphrey presents his experience with M&A disputes in the current economic climate and discusses the new shape of disputes and the challenges to assessing damages.
On Tuesday, 17 November 2020, as part of the Dubai Arbitration Week, the Singapore International Arbitration Centre (SIAC) hosted a webinar focused on international arbitration.
International arbitration is the preferred dispute resolution mechanism for cross-border construction and infrastructure disputes. Parties face unique challenges as these projects are often complex, involving multiple parties and contracts. The disruptions caused by COVID-19 have added to the complexity of the issues faced by developers, contractors, suppliers and subcontractors.
In this webinar, leading international arbitration practitioners and arbitrators discuss the strategic considerations as well as tools and techniques that may be utilised for the efficient resolution of cross-border construction disputes.
The opening address was provided by Ms Lim Seok Hui, CEO of SIAA and the panel discussion was moderated by Mr Gary Born, President of SIAC Court of Arbitration and Chair, International Arbitration Practice Group at Wilmer Culer Pickering Hale & Dorr.
HKA were proud to be platinum sponsors of the GAR DIFC | LCIA Dubai Arbitration Week which took place virtually on 16 – 19 November 2020.
Derek Nelson, Partner at HKA, took part in the GAR Interactive Question Time which provided an opportunity for the audience to pose questions directly to an esteemed panel of arbitrators and advocates.
The esteemed panel included Robert Stephen, DIFC-LCIA Arbitration Centre Registrar, Saleh Alobeidli, Managing Partner of Saleh Alobeidli & Co Advocates & Legal Consultants, Anneliese Day QC, Barrister with Fountain Court Chambers and Arran Dowling-Hussey, Barrister with 33 Bedford Row.
A full recording of the session can be found below:
The following program is a 90-minute webinar on topic of Considerations for Companies Entering the US Federal Contracting Space. Jointly produced by HKA and the law firm of Vinson and Elkins, this webinar is presented by HKA’s Partner’s Greg Bingham and Mike LaCorte along with Vinson & Elkins Partner Daniel Graham.
Complex construction involves numerous technical disciplines with multiple interfaces to manage and resolve. When significant defects arise, their resolution is often extremely challenging.
In this 60 minute presentation, HKA discuss the contractual, commercial and practical issues arising out of defective work, providing insight into how defect issues are addressed in standard form contracts and in dispute resolution proceedings.
With reference to practical examples, HKA discuss the issues that arise, as well as the challenges faced by the parties when defects in design and workmanship occur either during the construction of the project, or long after the work is completed.
Topics presented throughout the presentation include:
Contractual obligations to rectify defects and recover costs incurred and the procedural issues to be followed
‘Patent’ defects versus ‘latent’ defects
To what extent should a Contractor be allowed to rectify its own defects?
To what extent is an Employer required to mitigate its loss?
Quantification of costs and damages incurred
Limitation of liability clauses and their impact (if any)
The role of the technical Expert in assessing defect issues
Common mistakes that parties make when pursuing and defending claims for defective works
SPEAKERS
DAMIAN WATERS, PARTNER
Damian is a legally qualified quantity surveyor with over 30 years’ construction industry experience. He has provided commercial and contractual advice and has managed large multi-disciplinary teams on a broad range of projects for a varied UK and international client base. Damian has also acted as an Expert Witness and Expert Advisor on quantum matters on a number of occasions and has extensive experience of dispute resolution acting as client representative in adjudication, Dispute Adjudication Boards (DAB), arbitration and mediation hearings; including preparation of statements of claim and responses for arbitration (domestic and international), referral notices and responses in DAB and adjudication proceedings, mediation position papers and negotiation of commercial settlements.
EUAN GEDDES, TECHNICAL DIRECTOR
Euan has over 25 years’ experience as a chartered architect specialising in commercial, retail residential and industrial work. He is accredited by the Royal Incorporation of Architects in Scotland (RIAS) as an expert witness and has experience in the preparation of expert reports for use in various forms, including arbitration, adjudication and litigation. His experience covers all the RIBA Plan-of-Work stages, including architectural appointments, feasibility studies, scheme designs, statutory approvals, production information, detailed specification and report writing. Euan has acted as lead consultant and contract administrator throughout his career and is well acquainted with a variety of procurement routes
HKA Partners, Damian Waters (quantum expert) and Colin Johnson (damages expert) are joined by Lucy Garrett QC of Keating Chambers in this 60-minute webinar, followed by Q&A, to provide expert insight into oil and gas contracts.
During the webinar, Lucy Garrett QC addresses the courts’ approach to exclusion clauses following Transocean, including considering the current position as to the meaning of consequential loss. Damian Waters reviews contractor recovery of additional costs under the LOGIC form of contract and Colin Johnson considers the points parties need to consider in evaluating commercial damages, particularly in light of market disruption past and present.
Speakers:
Lucy Garrett QC, Keating Chambers
Lucy was called to the Bar in 2001 and was made Queen’s Counsel in 2018. She has an impressive specialist practice in construction, engineering, energy and shipbuilding, with a particular focus on mega-projects involving complex factual, technical and contractual disputes. Her practice includes claims for and against construction professionals in these sectors and project-related issues such as insurance, bonds and guarantees. Lucy also advises on and acts in adjudications, from referral stage to enforcement.
Lucy is always in demand for her forceful advocacy, commercial approach and “stellar” intellectual ability, which has led to instructions in a series of high profile, high value disputes. She has extensive experience in the TCC and the Commercial Court in the UK, and in international arbitration including in civil code jurisdictions. She is familiar with international parties and tribunals.
Damian Waters, Partner, HKA
Damian is a legally qualified quantity surveyor with over 30 years’ construction industry experience. Damian has worked on a broad range of projects for a varied UK and international client base in the building, civil engineering, infrastructure, oil and gas, power and utilities, marine and off shore renewable sectors. Daman has provided commercial and contractual advice to contractors and employers on a number of major international projects and has significant experience in managing large multi- disciplinary teams both in pursuing and defending construction claims.
Damian has acted as an expert witness and expert advisor on quantum matters on a number of occasions and has extensive experience of dispute resolution acting as client representative in adjudication, Dispute Adjudication Boards, arbitration and mediation hearings; including preparation of statements of claim and responses for arbitration (domestic and international), referral notices and responses in DAB and adjudication proceedings, mediation position papers and negotiation of commercial settlements.
Colin Johnson, Partner, HKA
Colin has international experience in analyzing, negotiating, and managing major energy projects and has worked in Europe, North America, Latin America, Africa, the Middle East, and Asia. Recognised by Who’s Who Legal as a Global Leader, Colin has acted on behalf of national governments, large companies, and entrepreneurs in international arbitrations and litigation as an expert witness for a variety of cases ranging up to US$50bn+ in claim value.
Colin applies extensive project investment experience when acting as an expert witness, valuer and advisor. He uses his experience in analysing, negotiating and managing major projects to determine full commercial impacts and their impacts upon valuation. He has advised on over US$60bn worth of projects and led a portfolio of over US$100m including acting as a director for several companies and government liaison.
During these uncertain times and once the construction sector begins to get back to work, one of the key challenges will be getting paid.
In this 60 minute presentation followed by Q&A, HKA considers some of the practicalities of ensuring that parties are paid what they are entitled.
Based on vast experience of international and domestic construction projects, Andrew Drennan and Paul Ives discuss the challenging issues that the construction sector faces in getting paid, with practical tips and advice in ensuring claims and variations are appropriately presented, as well as the importance of record keeping.
Topics Include:
Claims & variations – what are the key issues going to be?
Communication – what to do in NEC/FIDIC/JCT contracts
Records – what records should we keep and how should these be recorded/stored and presented effectively?
How to present a robust claim
What if the claim fails? – a brief overview of ADR techniques
Speakers:
Andrew Drennan, Principal
Andrew is a Chartered Surveyor with over 20 years of construction industry experience. He has been appointed as quantum expert on eight occasions.
Andrew has acted as quantum expert regarding various statutory adjudications in the UK as well assisting the named expert in numerous disputes. He is currently acting as the named expert in matters before the Court of Session in Scotland.
Andrew provides commercial and contract management support and dispute resolution for projects with values up to £1.2 billion and disputed values in excess of £100 million. He specialises in matters of procurement, cost management and post contract quantity surveying; particularly dealing with problematic variations and final accounts. Read Andrew Drennan’s full profile
Paul Ives, Executive Director
Paul is a legally qualified, Chartered Quantity Surveyor with over 20 years of construction industry experience. He has been appointed as an expert in quantum matters.
Paul has acted as an expert regarding compensation events and valuations for mixed-use buildings and transport infrastructure projects. He provides clients with support and expert reports for negotiations and settlements surrounding insurance, financial audit and contract entitlements.
Paul has experience across a wide range of buildings and civils projects ranging from schools, hospitals and residential schemes to large commercial developments, offshore and nuclear projects, specialist oil and gas installations, and utilities frameworks. He has a proficient working knowledge of various standard forms of contract including FIDIC, JCT, ICE and NEC, as well as bespoke forms of contracts and subcontracts including those for PFI and BSF schemes. Real Paul Ives’ full profile
Our current times continue to create massive economic uncertainty, but also offer the construction supply chain the opportunity to play a central role in economic recovery and the chance to reconfigure and operate in a more resilient way in the medium and longer term.
In this short presentation followed by a discussion and Q&A, HKA, Grant Thornton and DLA Piper discuss options for new ways of working and the practicalities of making sustainable change across the sector, both in the near-term (Re-Set) and longer-term (Re-Invent).
Based on vast experience of international and domestic construction projects, HKA, Grant Thornton and DLA Piper outline scenarios for change, examine the roles that different parts of the supply chain can assume, and provoke thought on how construction companies can remain productive and profitable whilst addressing this maelstrom of change.
Topics include:
How the supply chain may reconfigure itself to be more resilient
Increasing the use of risk assessment tools, including Digital Twins and other techniques
The practicalities of making off-site manufacture viable
The implications of on-site assembly of modular facilities
The role to be played by the client
How to share data and intellectual property in a way that is to the benefit of the whole supply chain
Legal considerations
Moderated By:
Dale Evans, Chair, Infrastructure Client Group (ICG) – Dale is recognised globally as a leading figure in infrastructure, with a formidable track record which boasts driving better practice and improved performance across industry. He is the Chair of the UK’s Infrastructure Client Group (ICG), which works to improve the productivity of the construction sector and helps to deliver successful outcomes from investment in infrastructure. Through the ICG, Dale has been instrumental in the development of Project 13 – an industry-wide change programme that aims to deliver better outcomes for the public and users of infrastructure networks.
Panelists:
Andrew Allen, HKA – Andrew is highly experienced consultant with a background in risk management, capital programme set-up and improvement, and financial control. He directs risk management advisory and consulting services to help HKA’s clients anticipate, analyse and resolve project, programme and portfolio challenges.
Will Rule, HKA – Will is a consultant who helps solve complex problems faced by organisations conceiving, developing and delivering major new asset developments across the infrastructure, buildings, and utilities sectors. With a background in engineering, construction law and finance, he provides advice on commercial issues, procurement and operational change.
Gary Forde, Grant Thornton – Gary is a Chartered Civil Engineer with over 30 over years’ experience in the infrastructure sector. His expertise combines deep programme assurance, commercial and financial skills. He has an excellent understanding of the structure of the infrastructure sector having advised the UK, Scottish and Welsh Governments and regulators on the structuring and commercial drivers facing different aspects of the industry. He is experienced in advice spans the structuring of enhancement projects, economic regulation, public sector procurement, risk management, governance, assurance, business case development, and financial modelling.
David Moss, DLA Piper – David has 30 years’ experience providing legal advice to national governments, funders, developers, employers, contractors, specialist contractors and design teams. He advises on the legal contract administration of infrastructure projects, including the resolution of formal disputes. He has advised on many forms of standard and non-standard contracts and was involved in demonstration projects using the ECC (the predecessor to the NEC). He sits as an adjudicator, mediator and a member of Dispute Review Boards.
In partnership with Built Environment Networking , HKA led this online construction contracts conference, focusing on helping understand how three forms of construction contract in use in the UK will deal with both the effects of Covid-19 and how the industry will emerge from the current situation.
Senior representatives of HKA bring together a diverse mix of industry experts to discuss JCT, NEC and FIDIC forms of contract, helping the industry understand what to expect when we get back to work (recorded 12 June 2020).
Session 1 – JCT
John Jones – Partner, HKA John is a Chartered Quantity Surveyor with a Master of Laws degree in construction law and arbitration. With a commercial management background he has worked for both Main Contractors and Sub-Contractors involved in the construction of a wide range of projects. His experiences cover civil engineering schemes including rail and highway works, industrial and process plants, oil and gas, power generation, health and education schemes, refurbishment and residential projects.
Industry Speakers: Matt Chandler – Associate Director, Godwin Developments Helen Thompson – Legal Director, Thirteen Group
Session 2 – NEC
Andrew Drennan – Principal, HKA Andrew is a practicing quantum expert and Chartered Quantity Surveyor with over 20 years of experience in quantity surveying, procurement, and commercial and contract management throughout the UK. As well as acting as a quantum expert in adjudication, arbitration and litigation proceedings. With experience spanning a wide range of expert assignments in the buildings, cabling, infrastructure, nuclear, power and utilities sectors. Andrew has been instructed as a quantum expert witness on several occasions, provided specialist advice on producing disruption claims, assisted in numerous dispute avoidance cases and also provided bespoke commercial and practical contract administration advice.
Industry Speakers: Mark Denham Smith – Commercial Director, Shepley Engineers Veronica Flint Williams – Contract & Risk Manager, Environment Agency
Session 3 – FIDIC
Charles Wilsoncroft – Partner, HKA Charles has experience dealing with all manner of civil engineering and construction projects, including offshore and onshore infrastructure, energy and construction schemes. He has extensive knowledge of contract dispute procedures, including negotiated settlements, mediation, conciliation, adjudication, arbitration and litigation, both in the UK and overseas and is actively involved in providing advisory services to apply lessons learned to the wider industry. He has practical knowledge of numerous standard construction contract forms including FIDIC, NEC, ICC (with Network Rail standard amendments), ICE, Logic and BIMCO.
Healthcare construction projects are complex, use “state of the art” designs, involve multiple stakeholders and contracting parties. In these circumstances, expectations are often misaligned which results in defect and performance issues. In other words, notwithstanding the best of intentions, disputes arise.
Resolving disputes on these capital projects requires a breadth of expert forensic analysis to navigate the intricate web of many underlying issues.
Recent research (CRUX Insight 2019) draws on an unprecedented bank of knowledge to provide valuable insights into the most common causes of claims and disputes, resulting in delays and cost overruns, on major capital projects across multiple sectors around the world.
The presentation draws on the 2019 CRUX data and reviews the more extensive Crux 2020 research data into over 1100+ projects across multiple sectors including 51 healthcare facilities from 8 different countries. This research confirms there are fundamental issues which are within the control of the various project stakeholders. Also, we can see from the research that these issues are repeating themselves year on year which means that lessons are not being learned in the buildings sector.
If the industry is to break this cycle of repetitive disruption, delay and over-blown costs, employers and contractors need to understand, prepare for and manage the complexity of their projects.
This webinar delivered on behalf of the Healthcare Estates Conference considers the evidence from CRUX Insight research of 29 healthcare projects from around the world and identifies common issues resulting in a claim or dispute. How various project stakeholders can mitigate the number of claims arising is discussed and considered, and which would place all parties in a better position to settle any claims which evolve into disputes.
