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

Construction Arbitration Podcast Series Episode 2: Experts

What are the key points to bear in mind when working with expert witnesses in construction arbitration proceedings?

We are pleased to share the second episode in our Construction Arbitration podcast series, which discusses the engagement and use of experts and their roles in a construction arbitration.

In this episode, we cover the types of experts usually involved, best practice in selecting experts, practical tips for getting the best out of your experts and the highlights from recent ICC guidelines relating to effective case management techniques in construction arbitration cases.

The remainder of the series will feature episodes discussing the various stages of a construction arbitration, including dealing with documents and factual witnesses, preparing a case and managing the arbitration procedure itself.

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

The first episode in the series, which looks at the key characteristics of a construction arbitration can be found here.

In the next episode in the series, we will be looking at how to manage documents and factual witnesses in the context of a construction arbitration.

For more information, please contact James Doe, Naomi Lisney, Karan Talwar or your usual Herbert Smith Freehills contact.

James Doe
James Doe
Partner and UK Head of Construction & Infrastructure Disputes, London
+44 20 7466 2583
Naomi Lisney
Naomi Lisney
Senior Associate, London
+44 20 7466 3417
Karan Talwar
Karan Talwar
Associate, London
+44 20 7466 6427

GAR Guide to Construction Arbitration now available to download, including chapter on ‘Construction Arbitration and Turnkey Projects’ by HSF’s James Doe, David Nitek and Noe Minamikata

London-based Construction & Infrastructure Disputes Partners, James Doe and David Nitek, and Professional Support Lawyer, Noe Minamikata, have authored the chapter on ‘Construction Arbitration and Turnkey Projects’ in the third edition of Global Arbitration Review’s Guide to Construction Arbitration.

The Guide to Construction Arbitration is an in-depth review of construction disputes internationally – from preparing contracts and guarantees, to setting up dispute boards, organising arbitration proceedings, analysing documents and evidence, and navigating within particular industries and regions.

This guide is the only book that offers a detailed discussion and commentary on both the principal features of international construction contracts and the dispute resolution methods they typically contain, with chapters addressing key issues in the following general topics:

  1. International Construction Contracts
  2. Dispute Resolution for Construction Disputes
  3. Select Topics on Construction Arbitration
  4. Regional Construction Arbitration

Herbert Smith Freehills’ chapter, ‘Construction Arbitration and Turnkey Projects’ is available to download as a PDF. The full guide can be accessed online at: The Guide to Construction Arbitration – Third Edition

For more information, please contact James Doe, David Nitek, Noe Minamikata or your usual Herbert Smith Freehills contact.

Accreditation: An extract from the third edition of GAR’s The Guide to Construction Arbitration, first published in October 2019. The whole publication is available at https://globalarbitrationreview.com/edition/1001411/the-guide-to-construction-arbitration-third-edition

James Doe
James Doe
Partner and UK Head of Construction & Infrastructure Disputes, London
+44 20 7466 2583
David Nitek
David Nitek
Partner, London
+44 20 7466 2453
Noe Minamikata
Noe Minamikata
Professional Support Lawyer, London
+44 20 7466 2838

Construction Arbitration Podcast Series Episode 1: Introduction to Construction Arbitration

Complex construction projects commonly give rise to disputes, which are often referred to arbitration. But what makes a construction arbitration different from any other type of commercial arbitration?

We are pleased to share the first episode in our Construction Arbitration podcast series which explores in more detail what makes a construction arbitration different from any other type of commercial arbitration.

The remainder of the series will feature episodes discussing the various stages of a construction arbitration, including engaging experts, managing documents and factual witnesses, preparing a case and managing the arbitration procedure itself.

This episode can be found on SoundCloudSpotify and iTunes.

In the next in the series, Karan Talwar and Naomi Lisney will be discussing the engagement and use of experts and their role in a construction arbitration.

For more information, please contact Craig Tevendale, Partner, James Doe, Partner, Rebecca Warder, Professional Support Lawyer, or your usual Herbert Smith Freehills contact.

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
Rebecca Warder
Rebecca Warder
Professional Support Lawyer, London
+44 20 7466 3418

GAR Guide to Construction Arbitration now available to download, including chapter on “Construction Arbitration and Turnkey Projects” by HSF’s James Doe and David Nitek

London-based Construction & Infrastructure Disputes partners James Doe and David Nitek have authored the chapter on ‘Construction Arbitration and Turnkey Projects’ in the second edition of Global Arbitration Review’s Guide to Construction Arbitration.

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