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:
Energy Transition and the race to net zero is upon us now. Governments have set a clear path forward with a determined end point to achieve the required energy mix to obtain net carbon free emissions targets by 2050. From a business perspective this is a golden opportunity, the demand is confirmed.
In this second of our energy mini-series, HKA and Clyde & Co discuss practical tips and lessons learnt in identifying and minimising contractual risk and disputes. The session covers:
A brief summary of growth and development areas in Energy Transition
Key causations of claims and disputes utilising HKA’s CRUX causation data, including comparisons and key differentials between industry sub-sectors relating to Energy Transition
Avoiding the key causes of dispute in relevant sub-sectors such as offshore wind – with real life examples
Project managing for a smooth transition
Disputes in transition
Speakers
Charles Wilsoncroft– Partner, HKA Charles is a Partner at HKA with over 20 years’ experience in the construction industry. He is a chartered civil engineer who has gained broad experience working for a main contractor, a public-sector client organisation and now an international consultancy. During his career he has been involved in all manner of procurement, contract training, project management, contract management and contract administration including dispute resolution, expert witness provision and final account settlement. He has experience across a range of Energy (including traditional and renewable generation, transmission etc.), Oil and Gas, Marine and Infrastructure projects and regularly advises clients in respect of such.
Mary Anne Roff– Partner, Clyde & Co Mary Anne is a partner at Clyde & Co, specialising in construction and engineering disputes in the clean energy, power and infrastructure sectors. She has extensive experience of clean energy-related construction arbitration, as well as litigation, adjudication and all forms of alternative dispute resolution.
She acts for parties throughout the supply chain on projects/disputes in Europe, the Middle East and Asia Pacific, and has knowledge of all of the key standard forms including FIDIC, LOGIC and NEC.
Clients rate her pragmatism, proactivity and strategic approach to achieving their objectives.
She has advised across the spectrum of clean energy project issues: from issues during construction such as variations, design, delay and prolongation, liquidated damages, weather claims and interface issues through to warranty defects and life-cycle problems.
Mary Anne is included in the global Acritas Stars database as a stand-out lawyer. She won the construction law category at the European Women in Construction and Engineering awards and has been ranked for many years in legal directories as a “Leading Individual” who is “very pragmatic, proactive, clear, transparent in her advice – everything in-house counsel is looking for in a provider”.
She is frequently asked to write and speak on topics related to clean energy and climate change. Recent examples include her articles in Renewable Energy World and Power Grid; and her one-to-one ‘fireside chat’ on clean energy with Kwasi Kwarteng, the UK Secretary of State for Business, Energy and Industrial Strategy.
Philip Norman–Partner, Clyde & Co Philip is a partner in the London and Dubai offices, who has specialised in dispute resolution for over 25 years. He focuses on complex, high-value project support and disputes on major energy and infrastructure projects being developed around the world; and to date he has undertaken work involving over 30 different countries for governments, sponsors, main contractors, engineers and designers.
Philip becomes involved early in clients’ developments and approaches the issues that arise commercially, devising strategies to avoid or resolve disputes. He has demonstrated strong skills in planning, implementing and managing the process to deliver those strategies; specially on the most difficult and commercially sensitive cases.
Philip is a Fellow of the Chartered Institute of Arbitrators and often takes appointments as an arbitrator.
Philip has been ranked tier 1 in Chambers and Partners, is recommended by the Legal 500 and is identified as a leading expert by Who’s Who Legal. Some of his citations include:
Sources respect his “extensive experience with the international construction industry and top-notch preparation and analysis“.
Philip Norman has “substantial legal experience and technical expertise, coupled with an eye for detail“.
Philip Norman is described by clients as “a very confident litigator” Other sources say that “he is excellent and possesses good commercial awareness“.
HKA in association with Nishith Desai Associates, hosted a stimulating discussion on top causes of claims and disputes in projects in the construction industry space and strategies to tackle them.
The session touched upon the latest trends in resolving disputes and claim settlement worldwide, with a special focus on South Asia. The discussion was based on HKA’s CRUX Insight 2020 report, which analyses the patterns of claims and disputes emerging in construction industry globally.
This webinar was also supported by Royal Institution of Chartered Surveyors and Society of Construction Law.
The webinar focussed on important aspects such as:
Top causes of claims and disputes globally and South Asia
Design Issues / Changes in scope / contractual interpretation issues
Opportunistic Claims in times of COVID-19
Global trends in resolution of disputes and claim settlement
Effective strategies to mitigate the risks of disputes
Effective strategies to handle contentious situations
SPEAKERS
Benjamin Highfield Partner and Head of Asia, HKA
Martin Burns Head of Alternative Dispute Resolution Research and Development, RICS
Hamish Egan Associate Director, HKA
Ashish Kabra Head (Singapore), International Dispute Resolution & Investigations Practice, Nishith Desai Associates
Mohammad Kamran Leader, International Litigation &Dispute Resolution Practice, Nishith Desai Associates
Long-term contracts for major projects differ from “ordinary” construction contracts. They frequently involve government bodies as the ultimate employer, as well as a complex overlay of lender rights. The contractor’s involvement typically continues long after the physical works are complete. The parties’ contractual rights and responsibilities outlive the original economic and political assumptions that brought them about, but the high lifetime value of the contract can make termination a costly option.
The webinar looks at some key problem areas – and practical solutions – for parties to long term project contracts, including how to notify, manage and quantify claims for breach, the role of lenders in contract disputes, and – when all else fails — the implications of early termination.
Gordon Nardell QC – Twenty Essex Gordon specialises in international litigation and arbitration. He has a particular focus on claims by and against state bodies, especially in the areas of energy, infrastructure and utilities. Gordon is also known for his work in other sectors including regulated markets such as transport, public/private partnerships and financial services.
Sue Kim – Director, HKA Sue is a Chartered Quantity Surveyor (UK-trained) and a qualified architectural engineer (South Korea-trained) with 20 years of experience in the engineering and construction industries. She has been appointed as quantum expert and has acted as an assistant to the named expert on multiple occasions. Sue has been Called to the Bar of England and Wales by The Honourable Society of the Middle Temple in November 2020.
HKA and Freshfields Bruckhaus Deringer in co-operation with The Academy of Experts.
The Covid-19 pandemic brought about a near overnight change to how litigation and arbitration have been conducted. The global shift to virtual hearings has been remarkable, both for how quickly and widely they have been embraced, and for how successful many have been. The past 12 months have, however, been a steep learning curve for all involved, particularly those conducting proceedings and giving expert evidence.
Freshfields Bruckhaus Deringer partner Jane Jenkins, counsel Tom Hutchison and global projects and hearings lead, Stephani Mbonu joined HKA, partner Derek Nelson for an insightful panel discussion to share their experiences, lessons learnt and views on future trends concerning the giving of expert evidence in a virtual environment.
Topics discussed by the panel included:
effective cross-examination and expert witness conferencing from behind a screen;
the challenges of giving expert evidence in virtual hearings;
how the set-up of hearings can aid success; and
future trends for remote evidence and virtual hearings.
Derek Nelson – Partner, HKA Derek is currently the Chairman of the Academy of Experts and is a chartered quantity surveyor and chartered engineering surveyor with over 40 years of construction and engineering experience. He has acted as expert on over 70 occasions in delay, disruption and quantum matters. Derek is both an accredited and certified expert witness and has acted as a delay and quantum expert witness in arbitration, conciliation, litigation and mediation and as an expert determiner. He has been cross-examined on over 10 occasions and has delivered concurrent evidence in disputes from Belize to Brunei and Scotland to Singapore. Alongside his work as an expert adviser for ongoing projects, Derek undertakes the role of ‘project neutral’, independently reviewing international projects in preventative, on-the-job dispute resolution.
“Derek Nelson is a “thorough” expert with the innate ability “to react quickly and master a lot of material within a short time”.WWL Thought Leaders – Construction Experts 2020
Jane Jenkins – Partner, Freshfields Bruckhaus Deringer Jane is the head of the engineering, construction and procurement group at Freshfields Bruckhaus Deringer LLP based in London. Jane’s sector experience includes oil and gas, power, chemical processing, infrastructure and real estate and her clients include utilities, governments, major contractors and credit providers. Jane has acted as Counsel on ICC, LCIA, UNCITRAL, LMAA and ad hoc arbitrations as well as High Court litigation, mediation, adjudication and expert determination. She also advises on procurement, bid challenge and contract negotiation.
Jane read law at Lincoln College, Oxford (Exhibition), and Guildford College of law (First Class Honours). She qualified as a solicitor at Freshfields in 1988 and became a partner in 1996. She is author of International Construction Arbitration Law published by Kluwer and co-author of Partnering and Alliancing on Construction Projects published by Sweet and Maxwell. She was a member of the ICC Working Group on Construction Industry Arbitration and is a member of the UK ICC Commission on Arbitration and ADR. Jane is also a CEDR accredited mediator.
Jane is recognised as a leading practitioner in the Legal 500 International Arbitration Powerlist.
Tom Hutchison – Counsel, Freshfields Bruckhaus Deringer Tom is Counsel in our Global Projects Disputes Practice, based in London. He acts for clients in all forms of dispute resolution, including international arbitration, litigation and ADR with a key focus on complex construction and engineering disputes in the infrastructure, power and oil and gas sectors, in addition to client’s broader commercial interests, such as shareholder/ JV participation and project security. Tom also advises clients over the full lifecycle of projects from front end structuring, bids and bid challenges to mitigating risk during project execution and operation.
Stephanie Mbonu – Global Projects and Hearings Lead, Freshfields Bruckhaus Deringer Stephanie is the Global Projects and Hearings Lead for our international arbitration team and is based in London. In her 10+ years at Freshfields, Stephanie has worked on international arbitration mandates at all stages of proceedings, and her hearing experience spans over 40 arbitration hearings all over the world, including several virtual hearings.
The Energy Transition and the race to net zero is upon us now. Governments have set a clear path forward with a determined end point to achieve the required energy mix to obtain net carbon free emissions targets by 2050. From a business perspective this is a golden opportunity, the demand is confirmed.
In the first of this two part mini series of webinars, we look at what Energy Transition is and why the oil and gas industry is so important in the race to meet net zero targets by 2050.
We also take an in-depth look at the following four sectors;
Offshore Wind
CCUS
Hydrogen
Energy Storage
SPEAKERS:
Neil Golding – Director Market Intelligence, Energy Industries Council Neil has over 20 years’ experience of working in the oil and gas industry in various roles and currently heads up a team of Energy Analysts at the EIC. The team’s main role is to support the UK supply chain in identifying business opportunities in the global energy markets.
Kevin Slater – Technical Director, HKA Kevin is a chartered engineer and chartered marine engineer with over 38 years’ combined experience in the offshore upstream Oil & Gas industry, including power generation, mining and construction. He has more than 25 years’ experience specialising in integrated subsea systems and subsea control systems for clients in the UK and around the world. Kevin also has many years’ hands-on experience as a Technical Assurance and Lead Controls Systems Engineer for a number of major oil companies and contractors across the UK and Europe. He has developed an excellent technical ability gained from a diversity of projects from various industries. Kevin uses proven and robust commercial acumen to manage, drive and deliver value on major and complex projects..
Trevor Butler –Sector Lead, Oil & Gas, HKA Trevor has over 35 years of experience in the international Oil & Gas industry, taking leadership roles in large scale field developments and drilling / well construction campaigns in both the onshore and offshore arenas. In his recent career Trevor has specialised in the ‘Compliance and Risk Management’ disciplines as they relate to industry best practice, governing standards and the interrelated commercial, technical and physical ‘Risk Pictures’ of Oil & Gas projects. Trevor is a recognised expert in drilling related quality assurance and risk management, well planning, well equipment and platform to rig system interfaces, with a particular focus on the effective management of supplier, technical, contractual and regulatory compliance. He has been appointed as an expert witness and expert advisor on more than seven occasions, often on matters involving compliance to established practice and applicable standards, failure investigations and construction related disputes.
HKA joined this UCL Faculty of Laws event to discuss damages calculation issues that lawyers may decide on in a case, from who the parties are onwards, and how these can dramatically change the result of damages calculation.
The session was chaired by UCL Faculty of Laws’ Martins Paparinskis with HKA’s Colin Johnson, Michael Laming and Rebecca Ruthven providing the main presentation, followed by commentary provided by Sebastian Blomeier of Munich Re.
Colin Johnson is a partner in HKA’s Forensic Accounting and Commercial Damages practice. He has over 30 years experience, initially in relation to major projects as legal and financial advisor, investment manager, board director and project director. He has acted in over 50 cases in investment treaty and commercial arbitration and national courts ranging up to US$50 billion in size and has given evidence 20 times across a range of sectors including oil and gas, power, telecoms, mining, transportation, construction, infrastructure and agriculture. His expert witness work is in relation to valuation, loss of profit, project finance and principally project viability.
Michael Laming is an Associate Director in HKA’s Forensic Accounting and Commercial Damages practice, and a Fellow of the ICAEW. He has over 10 years’ experience in forensic accounting and has acted as an expert in both national and international litigation and in commercial and investment treaty arbitration proceedings, giving evidence in national Courts and arbitration Tribunals both in the English and Spanish language. Michael specialises in valuations, the assessment/ quantification of damages and the analysis of complex accounting information. He has worked across a range of sectors, including transportation infrastructure and logistics, renewables, construction, manufacturing, finance, sports entertainment and TMT (Technology, Media and Telecommunications), amongst others.
Rebecca Ruthven is a qualified ICAEW chartered accountant and Senior Managing Consultant in HKA’s Forensic Accounting and Commercial Damages practice. She has over seven years’ experience in the financial industry advising on a range of cases including commercial disputes, including cross border disputes and arbitrations, investigations and valuations across several sectors. Her experience includes preparing expert witness reports and performing analysis and she has attended mediations and court and arbitration proceedings. Rebecca’s previous work experience includes working in audit at one of the big four accounting firms, gaining exposure to the technology, media and telecommunication industry sectors. Prior to this, she completed an industrial placement with the same firm as part of her degree within the Fraud Investigations and Dispute Services (FIDS) department. Sebastian Blomeier is a qualified English Solicitor who trained at Clyde & Co. Prior to starting his Training Contract, Sebastian read law at St Mary´s University and graduated from UCL with a LL.M degree. Since qualification, he has joined Munich Re as a claims manager, where he monitors and manages financial lines and property claims in Europe and Latin America. Further, Sebastian is a Visiting Fellow for insurance and arbitration law at St Mary´s University and is the founder of the Disputes Europe Latinamerica (“DELA”) network.
