Construction industry arbitration: Recommended tools and techniques for effective management
This seminar features a diverse and stellar panel of speakers and will address best practices in the management of factual witness and expert evidence, in the context of the 2019 Update.
For more than two decades, the ICC’s think tank and rule making body, the Commission on Arbitration and ADR, has been giving special attention to best practice in the management of construction industry arbitrations under the auspices of the ICC Rules of Arbitration.
The ICC Commission Report, Construction Industry Arbitrations Recommended Tools and Techniques for Effective Management is a 2019 update of the first edition of the Final Report on Construction Industry Arbitrations published in 2001, reflecting both the various modifications made by the ICC Rules of Arbitration (as revised in 2017) and developments in the practice of arbitration in construction disputes. Thus it gives contemporary guidance on a range of tools and techniques for use in successfully managing construction arbitrations in the present day.
Agenda
17:00: Introduction 17:05: ICC’s perspective 17:25: Arbitrator’s perspective 17:45: Counsel’s perspective 18:05: Hot tub panel discussion 18:45: Closing remarks 18:50: Q&A 19:00: Close
The UK government has just published its draft Building Safety Bill introducing the most significant building safety reforms since 1945 that will shortly impact everyone involved in the development, construction, design and management of all buildings.
Hundreds of buildings have been identified with unsafe cladding with building owners and residents facing substantial repair costs – HKA’s Bart Kavanagh and Paul Jolly joined Watson Farley & Williams for a briefing to discuss the most important construction legal developments and informed analysis of this ongoing combustible cladding scandal.
Moderator: Rebecca Williams, Partner and Co-Head of Dispute Resolution Group, WFW
Speakers: Barry Hembling, Partner, Real Estate Group, WFW Dev Desai, Partner, Dispute Resolution Group, WFW Ryland Ash, Partner , Dispute Resolution Group, WFW
HKA and Bryan Cave Leighton Paisner presented on behalf of the Chartered Institution of Civil Engineering Surveyors.
The session addresses how to assess costs due to delay under the NEC contract. The speakers first consider the contractual and legal framework, as well as how the courts treat such costs and concepts such as disruption, before addressing the practical issues and what can be done in practice to identify such costs and how best to manage the relevant site records to demonstrate those costs.
The NEC suite of contracts focuses on collaboration and co-operation as they empower users to deliver projects on time, on budget and to the highest standard. In reality however, there are numerous factors that can derail a project, from commercial pressures to inexperience and human error, meaning NEC disputes can and do occur.
HKA and HFW discuss recent case law on good faith, common NEC contract pitfalls and causes of dispute, along with practical issues that often end up in dispute from a quantum and delay perspective. The webinar also concludes with a look at NEC dispute resolution provisions.
Katherine is a senior associate in HFW’s international construction team. She splits her time between Scotland and London. Katherine is accredited as a construction law specialist by the Law Society of Scotland.
Katherine has extensive experience in renewables, heavy engineering and infrastructure projects in the UK and overseas, with a particular focus on dispute avoidance and dispute resolution. She is involved in a range of matters, including offshore wind, hydro power, road building projects, bridges, energy from waste, process plant, commercial and residential projects. Katherine has experience in all aspects of dispute resolution, including arbitration, litigation, adjudication and mediation. She has a particular interest in in dispute avoidance and ADR.
Andrew has experience of advising contractors, employers, consultants and funders in a wide range of projects. His experience encompasses the full lifecycle of construction projects from advising on procurement structures and drafting and negotiating construction contracts, to live project advice and dispute resolution. Andrew has experience advising on adjudication, mediation, litigation and arbitration.
His experience includes advising contractors on claims for extensions of time and on disputes relating to disallowed costs. He has also successfully acted for clients on disputes relating to defects, termination and loss and expense.
Andrew has acted on matters spanning an array of sectors including water, rail, highways, renewables, nuclear new build and nuclear decommissioning.
Andrew is dual qualified in Scotland and in England & Wales
Andrew Drennan, Partner – HKA Andrew is a chartered surveyor with over 20 years of construction industry experience. He has been appointed as quantum expert in the High Court (TCC), Court of Session, International Arbitration and domestic Adjudication proceedings.
Andrew also provides commercial and contract management support and dispute resolution for projects with values up to US$1.67 billion and disputed values in excess of US$140 million. He specialises in matters of procurement, cost management, valuation of defects, disruption, and post contract quantity surveying; particularly dealing with problematic variations and final accounts.
The webinar, “Dealing with change in uncertain times”, was attended by over 500 people and looked at some of the current events which have made change more likely and potentially more costly and highlighted how FIDIC contracts deal with change requests and the effects of unplanned and unscheduled changes.
There was much discussion in the webinar chat and questions from attendees about a range of issues, contractual and non-contractual. These included: whether the cost for Covid PCR tests could be stipulated in the contract; whether amendments to the dispute resolution rules and procedures would be made to expressly cater for online meetings and hearings; whether Covid-19 would have a lasting impact on the crafting of contracts for the construction sector; and what measures could be taken to address the challenge of holding up the morale of employees and team members. These and many more questions were addressed by the panellists and the webinar.
Summing up the event, FIDIC president Bill Howard said that he hoped that the experience of the pandemic would lead to the industry working more collaboratively towards a more win-win approach in future rather than win-lose. It was heartening to see the increase in dialogue and collaboration reported by the panellists, said Howard, who hoped that this would continue well into the future.
MODERATOR:
FIDIC Chief Executive, Nelson Ogunshakin.
SPEAKERS:
Luigi Mula, Legal Director, DLA Piper, Italy Jeremy Glover, Partner, Fenwick Elliott, UK Husam Gawish, Partner, HKA, Qatar Emily McDonald, Partner, Buro Happold Engineering, UK.
The use of EPC delivery models continues to have rounded support in industry sectors and geographic regions. While it’s becoming an established contracting method, such models continue to include examples of significant contractual disputes and sub-optimization of overall performance.
As part of the RICE Global E&C Forum, this webinar shows how HKA’s CRUX dispute casusation research and analysis can be used to help refine and improve the execution of O&G and Energy EPC projects going forward.
Speakers:
Caryn Fuller, Director, HKA
Carynhas over twenty years of professional experience in engineering, construction, project management, project controls management and construction claims analysis. Caryn is a project/program leader with a proven track record in leading high-profile large-scale global construction initiatives with a focus on cost control, scheduling and reporting. Caryn manages HKA’s Houston practice and currently works with clients (both contractors and owners) involved with disputes and litigation. Prior to joining HKA, Caryn worked for KBR. While at KBR she was the Project Controls Department Manager in KBR’s Chicago office and the Senior Project Controls Manager from FEED through EPC on the successful $1.3B Koch Enid Fertilizer Expansion in Enid, OK. Caryn is the Membership Committee Chair for the Rice Global E&C Forum and she also serves on the EIC Connect Energy USA 2021 Advisory Board. The Houston Business Journal selected Caryn as an honoree for the 2020 Women Who Mean Business Awards.
Julian Haslam-Jones, Director, HKA
Julian is a Director with HKA, based in Abu Dhabi, United Arab Emirates. He has 20 years’ experience in all aspects of contract, claims and cost management, alternative dispute resolution and arbitration, and project and programme management. Julian has an LLM in Construction Law and Arbitration, an LLB (Hons) in Law and is a Fellow of the Chartered institute of Arbitrators.
He has held commercial and contract positions with operators, contractors and consultants in Algeria, Kuwait, Netherlands, Italy, Iraq, India, Qatar, Saudi Arabia, South Korea, the United Kingdom, and United Arab Emirates where he has been a resident for over seven years.
This experience has enabled Julian to become a specialist in contractual claims for time and cost, dispute resolution, and the successful conclusion of large value and/or complicated accounts on a wide variety of projects, employing various forms of contracts.
His experience portfolio includes many major EPC oil and gas projects in the Middle East, Asia and Europe.
Charles Wilsoncroft, Partner, HKA
Charles has over 20 years’ experience in the construction industry. He is a Chartered Civil Engineer, a Member of the Institution of Civil Engineers and a Member of the Chartered Institute of Arbitrators. He has gained broad experience working for a main contractor, a public-sector client organisation and now HKA. During his career he has been involved in all manner of procurement, contract training, project management, contract and claims management including dispute resolution, expert witness provision and final account settlement and regularly advises clients in respect of such. He has developed an ability to head-up teams formulating and appraising complex claims including in respect of liability, delay, disruption and other impacts, managing the overall strategy and delivery while also mastering the detailed aspects of claim
Throughout his career Charles has predominantly worked on civil and marine engineering including maritime works, dredging and structures including offshore O&G infrastructure, offshore wind (fixed and floating), subsea cables, FPSO mooring & hook up, platform decommissioning and salvage. He also has a significant experience in heavy engineering and infrastructure schemes including; O&G, process plants, rail, piling works (onshore and offshore), AMP water frameworks, highways, pipelines, canal works, dock construction and shipbuilding.
The panelists discussed issues of the use of hindsight in assessing damages or in valuations. Should the rules on hindsight be universally applied, or are there times when hindsight should or shouldn’t be considered? They looked at some recent judgements and presented the views of both counsel and those who sit as arbitrators.
Hosted by HKA, speakers included Gerry Brannigan (Moderator), Partner, HKA; Helen Collie, Technical Director, HKA; Kate Corby, Partner, Baker McKenzie; David Nitek, Partner, Herbert Smith Freehills; Amy Armitage, Counsel, Norton Rose Fulbright
The panelists discussed the construction disputes landscape in a post-Covid world. The panel explored the implications of the pandemic on the future state of construction disputes in international arbitration, litigation and adjudication.
This esteemed panel, moderated byRoula Harfouche, Partner, HKA, included Karen Best, Principal, HKA; Roberta Downey, Partner, Hogan Lovells; and Rachel AnsellQC, 4 Pump Court. The panelists gave real-life examples from their experience of the use (and abuse) of experts from the three perspectives of the instructing counsel, the advocate, and the expert. In addition to useful newish techniques, the panel discussed what was needed from experts and what was needed from counsel in the following stages:
