CONSTRUCTION ARBITRATION AND TURNKEY PROJECTS

In the complex world of construction, ‘turnkey’ projects are those where the contractor assumes the lion’s share of responsibility, from design and engineering to procurement and construction. Read the latest article by James Doe, David Nitek, and Noe Minamikata, which provides a deep dive into the intricacies of construction arbitration within the context of turnkey projects. The authors explore the various facets of these projects, from the contractor’s key obligations to the potential disputes that may arise, and the crucial role of arbitration in resolving these disputes.

Read the full article here. This article was first published on Global Arbitration Review in October 2023; for further in-depth analysis, please visit GAR The Guide to Construction Arbitration – Fifth Edition

 

James Doe
James Doe
Partner and Joint Global Head of Construction Disputes
tel:+44 20 7466 2583
David Nitek
David Nitek
Partner
tel: +44 20 7466 2453
Noe Minamikata
Noe Minamikata
Professional Support Lawyer
tel: tel:+44 20 7466 2838

King’s College London International Construction Arbitration Conference 2023

London-based Construction Disputes Partner David Nitek will be speaking at the King’s College London International Construction Arbitration Conference, on 14 September 2023.

This annual conference, now in its fourth edition, brings together leading practitioners in construction law dealing with the new and most pressing issues that have emerged over the past 12 months and are likely to be topical going forward, providing an international and practical perspective on arbitration and dispute resolution.

David will be speaking on the afternoon panel session “Procedural Order No. 1: views from counsel and tribunal“. Other topics to be covered during the conference are:

  • The use of FIDIC and NEC forms from the point of view of the employer and contractor in the international market
  • Digital tools in construction dispute resolution: how can we harness AI and digitalisation to resolve disputes efficiently?
  • The role of non-lawyer arbitrators in construction disputes
  • Effective advocacy in construction arbitration: making your case and persuading the tribunal
  • AI and Humans and Their Respective Roles in the Resolution of Construction Disputes
  • What should we expect in the next wave of disputes arising out of renewable energy projects?
  • The new wave of nuclear: what are the challenges and opportunities for the industry?
  • The pros and cons of DABs. Where do we stand?

Details of the conference are as follows:

Date: 14 September 2023

Time: 9:00 to 17:00 BST

Venue: Ashworth Centre, The Honourable Society of Lincoln’s Inn, London WC2A 3TL

For more information and to register, please click here.

David Nitek
David Nitek
Partner, London
+44 20 7466 2453

New SCCA Rules: strengthening the case for arbitration in the KSA

On 1 May 2023, the Saudi Centre for Commercial Arbitration (“SCCA“) announced the publication of its revised SCCA Arbitration Rules (the “new Rules“).  The new Rules apply to all arbitrations filed on or after 1 May 2023.  The new Rules replace the first edition of the Rules, which were published in 2016.

In a recent post on our Arbitration Notes blog, Dubai Partners Stuart Paterson and Nick Oury, and Of Counsel Sean Whitham, discuss the key changes introduced by the new Rules. The full post can be read here.

For more information, please contact Stuart Paterson, Nick Oury, Sean Whitham or your usual Herbert Smith Freehills contact.

Stuart Paterson
Stuart Paterson
Managing Partner, Middle East and Head of Middle East Dispute Resolution, Dubai
+971 4 428 6308
Nick Oury
Nick Oury
Partner, Head of Middle East Construction Disputes, Dubai
+971 4 428 6385
Sean Whitham
Sean Whitham
Of Counsel, Dubai
+971 4 428 6312

Case Digest: Court of Appeal finds conflict of interest where expert organisation was acting for and against same client on two separate but concurrent related arbitrations

In Secretariat Consulting PTE Ltd, Secretariat International UK Ltd and Secretariat Advisors LLC v A Company [2021] EWCA Civ 6, the Court of Appeal dismissed an appeal against the TCC’s decision in A Company v X, Y and Z [2020] EWHC 809 (TCC) and found that, on the facts, there was a conflict of interest where an expert organisation was acting for and against the same client on two separate but concurrent arbitrations concerning the same project and same/similar subject matter.

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Construction Law Masters Podcast Series: David Barry soundbite 3: Key differences between construction arbitrations and litigations

As part of our Construction Law Masters podcast series David Barry, Chairman and founder of Blackrock Expert Services Group and one of the world’s pre-eminent delay experts, gave his views on the differing role of experts in arbitration and litigation.

David spoke to James Doe, UK Head of Herbert Smith Freehills’ Construction & Infrastructure Disputes practice, about the key differences in the role of experts in each form of dispute resolution, which can be found on SoundCloud, Spotify and iTunes.

The full conversation touched on a wide range of issues, including:

  • his views on various aspects of delay analysis
  • key trends and developments in construction dispute resolution
  • key differences for experts between construction arbitration and litigation
  • experts’ relationships with clients and their lawyers

The full conversation can be listened to here.

We hope that you enjoy listening.

James Doe
James Doe
Partner, UK Head of Construction & Infrastructure Disputes
+44 20 7466 2583

English court restrains expert from acting in arbitration due to breach of fiduciary duty of loyalty – A Company v X, Y and Z [2020] EWHC 809 (TCC).

English court restrains expert from acting in arbitration due to breach of fiduciary duty of loyalty – A Company v X, Y and Z [2020] EWHC 809 (TCC).

 

Summary

Earlier this month, the English High Court extended an interim injunction restraining a global expert consultancy firm from acting as independent experts in separate, although related, arbitration proceedings against the claimant.[i]

In granting the claimant’s application to extend the interim injunction, the court held that:

  1. Not only did the expert firm’s subsidiary engaged by the claimant owe a fiduciary duty of loyalty to its client, that fiduciary duty extended to the defendant group (i.e. the second and third defendants) as a whole.
  2. The defendant group’s fiduciary duty of loyalty was not satisfied by putting in place information barriers. Measures such as this seek to preserve confidentiality and privilege. A fiduciary with a duty of loyalty must not place himself in a position where his duty and his interest may conflict.
  3. The defendant group breached its fiduciary duty by accepting instructions to provide expert services in connection with the second arbitration without first obtaining the claimant’s consent. The court’s finding that the two arbitrations are concerned with the same delays, and that there is a sufficiently significant overlap in the issues, underpinned its conclusion that the defendants breached their duty to the claimant.

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Construction Arbitration Podcast Series Episode 3: Documents and Factual Witnesses

Why are documents and factual witnesses so important in construction arbitrations?

We are pleased to share the third episode in our Construction Arbitration podcast series, in which we discuss the importance of documents and factual witnesses in construction arbitrations.

In this episode Craig Tevendale (Partner, UK Head of International Arbitration), Susan Field (Senior Associate, International Arbitration) and Olivia Liang (Associate, Construction & Infrastructure Disputes) take a look at how the factual complexity of construction disputes makes fact evidence particularly important. In particular, they cover the harvesting of documents and document management, document creation and retention, document production, predictive coding, fact witnesses and language issues which may arise.

This episode can be found on SoundCloud, Spotify and iTunes.

The remainder of the series will feature episodes covering the preparation of a case and managing the arbitration procedure itself.

If you are interested in listening to our other construction and arbitration podcasts, or reading our articles on construction and arbitration, please take a look at our Construction Notes (this blog) and Arbitration Notes and subscribe to receive notifications of our latest content.

Craig Tevendale
Craig Tevendale
Partner, London
+44 20 7466 2445
James Doe
James Doe
Partner and UK Head of Construction & Infrastructure Disputes, London
+44 20 7466 2583
Susan Field
Susan Field
Senior Associate, London
+44 20 7466 2818
Olivia Liang
Olivia Liang
Associate, London
+44 20 7466 7520