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After the initial seismic shock of Covid-19 had everyone struggling to catch up with its potential impact, much of the discussion was about business interruption, insurance claims and force majeure. In this webinar, a panel of HKA forensic accounting and commercial damages partners discuss the types of disputes they are seeing, and expect to see arising now that the dust has settled somewhat and businesses are assessing the full impact on them and their measures of recourse.

In collaboration with GAR and Lexology, the panel discussion is moderated by Colin Johnson from the UK, alongside panellists David Bones (USA), Jonathan Humphrey (APAC) and David Saunders (UK). The team specialises in assisting clients to manage disputes, risk and uncertainty on major complex contracts, and has expertise in valuations, economic damages, project viability, investigations, bankruptcy and intellectual property across a wide range of industries and sectors worldwide.

Speakers

Colin Johnson, Partner, Europe

Colin has over 30 years of experience, including acting as a lender, equity investor, developer, and legal and financial adviser before becoming an expert witness. He has given oral evidence and acted as an expert in matters of litigation and arbitration, ranging from investment treaty claims to commercial, contractual and construction disputes. He has supported clients on projects up to a value of $6 billion and disputed sums up to $50 billion.

Colin uses his international experience in analysing, negotiating and managing major projects to consider full commercial impact (including viability and solvency issues),  and its effect on valuations. He has worked in Europe, North America, Latin America, Africa, the Middle East and Asia on behalf of national governments, large companies and entrepreneurs.

Colin specialises in evaluating value and damages in relation to large project companies whether in investment treaty claims, contractual disputes and investigations. He has provided expert services across a wide range of sectors including power, oil and gas, infrastructure, agriculture, construction, financial services, manufacturing, real estate, telecoms and the public sector. He is fluent in Spanish and speaks Portuguese, French and German to differing degrees.

David Bones, Partner, Americas
David is an economic damages expert with over 17 years of experience in commercial damages and construction matters. He has authored over 70 expert reports and provided expert testimony in disputes, including depositions, arbitrations, jury trials and mediations. David has had the opportunity to work on several matters over $1 billion and has provided testimony on matters above $200 million.

David is skilled in a wide range of services, including lost profits, lost wages, business valuations, construction disputes, fund/asset tracing, financial condition and solvency analyses for clients in Asia, North America and South America. He has consulted on behalf of Fortune 500 companies and others in various industries, including mining, gaming, energy, real estate development, homebuilding, shipbuilding, chemical production, manufacturing, software, healthcare (hospital and insurance), grocery, automotive, transportation, specialty finance (subprime mortgage and auto), non-profit, financial institutions and agriculture.

David is a certified valuation analyst and is experienced in managing large project teams, including leading the solvency team on one of the largest fraudulent conveyance cases in US history, with damages in excess of $6 billion.

Jonathan Humphrey, Partner, APAC
Jonathan is a chartered accountant with over 20 years of experience in forensic accounting. He has acted as an expert witness in multiple forums, including international arbitration under the ICC, UNCITRAL, LCIA, SIAC, DIAC and HKIAC rules, court litigation and mediation. He has given oral evidence in commercial and investment treaty cases with disputed values of up to $600 million. 

Jonathan began his career at one of the big four accounting firms where he worked in their forensic accounting group for eight years before working for expert services firms for 12 years. He has experience in Europe, Africa, the Middle East, Asia and Australasia, working in a myriad of sectors, including oil and gas, power and utilities, construction, financial services, IT and telecoms, media, natural resources, pharmaceutical and retail.

Jonathan’s expert commissions cover a range of issues including the quantification of lost profits, business valuations and the assessment of damages relating to class actions, professional negligence, insurance claims, business interruption and post-acquisition disputes. His forensic accounting expertise includes fraud, forensic, intellectual property and regulatory investigations.

David Saunders, Partner, Europe
David is a chartered accountant with over 30 years of experience in forensic accounting.  He has been appointed to act as an expert on numerous occasions and has also been appointed to prepare and consider business interruption claims. 

David has given oral testimony (including being involved in witness conferencing) in both litigation and arbitration and has appeared before the courts and tribunals across Europe, Asia, the Middle East and North America. He has been appointed under the AAA, ICC, LCIA, SCC and UNICITRAL rules and as a damages expert in bilateral investment treaty cases.

David specialises in valuations and quantification of damages. The sectors his cases have covered include oil and gas, commodity trading, construction, property, pharmaceutical, telecommunications, manufacturing, hotels, retail, entertainment and financial services. He also has significant forensic accounting, fraud and financial investigation experience as well as working on cases involving the restatement of accounts. He has undertaken fraud and regulatory investigations in the United Kingdom, Europe and Asia and has provided expert evidence on funds tracing issues. He has also worked on due diligence assignments and pre-lending reviews.

This webinar focuses on insolvency in the construction industry supply chain. Understanding its causes and implementing mitigation measures can undoubtedly help minimise the impact. Within the backdrop of the intense COVID-19 climate, our experienced panel of commercial, financial and legal experts explore safeguards that can be implemented when putting construction contracts in place, as well as the practical steps to take should an insolvency event impact your construction project and your supply chain.

DISCUSSION POINTS

Legal Issues 

• Introduction to insolvency. 
• The practical impact of the new Corporate Insolvency and Governance Act 2020. 
• Standard forms of contract – JCT & NEC provisions (impact of the new Act). 
• Security packages (performance bonds and parent company guarantees). 

Quantum Issues  

• Practical steps that parties can take to protect themselves. 
• Preparing for insolvency – how to spot the warning signs on a project. 
• Some simple “dos and dont’s” of insolvency. 

Financial Issues 

• Red flags – how to test when companies (contractors, subcontractors or employers) are in financial difficulty. 
• Warning signs that banks and investors look for. 
• What owners (or those putting out tenders) can do upfront to address potential issues.  

SPEAKERS

Sekai Nyambo – Associate Director/Chair, HKA
Sekai is a chartered quantity surveyor in HKA’s quantum team with 16 years’ commercial and contracts experience in the engineering and construction industries. Her portfolio includes major projects across a wide range of market sectors throughout the UK, Europe and South Africa.

Colin Johnson – Partner, HKA
Colin has over 25 years’ experience including acting as a lender, equity investor, developer, and legal and financial adviser. He has been appointed as an expert witness on more than 30 occasions for a variety of cases ranging up to US$50bn+ in claim value.

Paul Cacchioli – Director, HKA
Paul is a chartered quantity surveyor with more than 30 years’ construction industry experience. He has been appointed as a quantum expert on seven occasions for disputed projects including transport infrastructure and residential, mixed-use and healthcare buildings, with values of up to £250 million.

Elizabeth Vago – Partner, Spencer West
Elizabeth has over 20 years’ experience of a wide variety of large social infrastructure projects, renewable energy projects, local government outsourcing contracts, general commercial contracts and privacy and compliance in private practice and in industry.

Jonathan More – Partner, Spencer West
Jonathan has 20 years’ extensive experience as a qualified lawyer working on major construction and engineering projects, providing full project support from procurement through to contract close-out. 

As the pandemic persists across the world, its disruptive effect on people’s lives and on construction projects is still being felt and that looks likely to be the case for some time to come.

This webinar reviews the legal requirements for establishing a claim for disruption (including the manner in which courts and tribunals approach the assessment of such claims), as well as a critical consideration of the various methods of analysis to quantify disruption and to seek to demonstrate causation.  

The webinar also reviews some of the common errors made in the pursuit of disruption claims and offers practical tips and methods for preparing and pursuing disruption claims so as to avoid those errors.

SPEAKERS

Geoff Bewsey, Partner & Delay Expert, HKA

Geoff Bewsey is a civil engineer with over 40 years’ experience in the construction industry, working in design, contracting and consulting. He has been appointed as delay expert, regarding project planning and disruption matters, on more than 35 occasions. Geoff is a widely-experienced expert witness in the fields of disruption and delay. He applies sound planning principles to evaluate and report on issues of productivity and extension of time. Geoff has been cross-examined at arbitration in six hearings and has given concurrent evidence (hot-tubbing) during two of these disputes. He has also acted as expert assistant on numerous international disputes.

Geoff Bewsey has established a reputation as a “highly intelligent and intuitive” expert with vast experience in disruption claims and delay analysis.WWL Thought Leaders – Construction Experts 2020

James Morris, Partner, Mayer Brown

James Morris is a partner in the Construction & Engineering and International Arbitration practices of the London office of Mayer Brown. His practice includes a wide range of dispute resolution, advising employers, contractors, consultants and insurers in relation to all forms of construction related disputes and EU public procurement. He regularly advises on complicated technical disputes, including claims concerning defective design and workmanship, programming, delay, disruption and quantum, which arise out of the major forms of construction and engineering contracts. He is an experienced litigator who has represented clients in complex multi-party litigation in the High Court (Technology and Construction Court), mediations, adjudications and arbitrations (both domestic and international).

James has represented clients in a number of different jurisdictions in the Middle East, Africa and Asia.  James also has experience of dealing with complex insurance issues and regularly advises insurers on professional indemnity cases.

He is named a ‘Next Generation Partner’ by Legal 500 and ranked as “Up and Coming” by Chambers 2021.

“He provides sound advice and has an amazing work ethic.” “He is a thorough and pragmatic lawyer.” “His advice is immediate yet considered, articulate and sensible, due to his instinctive judgement.” – Chambers UK 2021

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.

Video property of Legal Plus Asia.

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.