construction and engineering dispute resolution helping ... · pdf filecontentious...

Construction and engineering dispute resolutionHelping clients worldwide resolve their construction and engineering disputes

Clients rely on our experienced team of specialists to deliver consistently excellent technical and commercial advice. Bob Maynard Partner, Head of Construction

Introduction Our contentious construction team has been ranked in Tier 1 of Chambers and Legal 500 since 2007. In a market where many advisers can look the same, BLP stands out from the crowd.

We have an extensive track record in handling large and small disputes across all sectors in engineering and construction both domestically and internationally. We can assist you in adjudications, litigation in the Technology and Construction Court and international arbitrations conducted under ad hoc and institutional rules (including DIAC, LCIA, ICC, DIFC, ADCCAC, SIAC and UNCITRAL), wherever the venue.

We believe that our collaborative approach to working with our clients and their teams is key to providing exemplary client service. We work with many of our clients at an early stage, preventing problems on site escalating into formal proceedings. We provide practical advice, fight hard when necessary and maintain pressure on the opponents, whilst always looking to achieve the earliest possible resolution, often through proactive use of mediation and other forms of alternative dispute resolution (ADR).

By returning year after year, our clients demonstrate that they not only value the skills, expertise and experience on offer, but also the partner time, fresh approach and rapport they have with us.

Bob Maynard Partner, Head of Construction

Construction and engineering dispute resolution /01

Berwin Leighton Paisner LLP

They have been very good, quick and attentive to the details, and they have a strong commercial flavour to their work. Chambers 2015

years advising in the construction industry

30

Our contentious construction team

Our contentious construction team Our contentious construction team based across our London, Abu Dhabi, Singapore, Hong Kong and Moscow offices is one of the largest specialist practices in both these jurisdictions. We have an unsurpassed track record of advising on major UK and international projects and acting for leading industry players.

The construction practice at BLP has been involved in some of the largest and most significant projects within the industry in recent years. This experience has provided our lawyers with unparalleled insight into the construction and engineering sector. We understand the issues affecting the industry and can add value by providing robust, bespoke and innovative solutions to limit risk and achieve your aims.

In addition, our level of experience enables us to combine technical legal excellence with the necessary commercial approach and sector understanding to produce excellent results for our clients. We work closely and efficiently with our clients’ technical teams and are recognised within the construction industry and the legal profession for being pragmatic, commercial and for helping parties to get deals done.

We work with many of our clients from the early stages of a project, helping to prevent problems on site escalating into disputes.

In situations when adjudication, litigation or arbitration is the right or unavoidable course of action, we will pursue your case vigorously.

We are able to assist you in all international construction disputes involving parties from many different jurisdictions and we have experience of conducting a variety of international arbitrations under various institutional and ad hoc rules.

At BLP, we strive to develop innovative solutions for our clients. Our forward-thinking reputation is illustrated through the recent formation of both our in-house advocacy team, led by one of London’s leading barristers, Stuart Isaacs QC and our in-house forensic accounting unit, who assist us on quantum issues which arise in many of our cases.

By adopting an integrated approach to resourcing and managing major adjudications, litigation and arbitrations, we are able to understand the issues faced by our clients to a far greater degree, enabling us to provide a fully integrated contentious advisory and representation service. Not only does this make more sense to our clients from a practical point of view, but it also provides them with far greater value.


At a glance Some key facts and figures that set the scene on BLP and our contentious construction and engineering team

>50we have advised on matters in more than 50 countries

12

offices in international locations: Abu Dhabi, Beijing, Berlin, Brussels, Dubai, Frankfurt, Hong Kong, London, Moscow, Paris, Manchester and Singapore

eight times winner of ‘Law Firm of the Year’ in a decade; more than any other firmkey client loyalty

four times winner of an FT innovative lawyers award in five years

FTinnovation

37specialist lawyers with contentious construction and engineering expertise

ranked number one by leading directories since 2007

%

At a glance

02/ Construction and engineering dispute resolution

>70the number of legal disciplines BLP is ranked in by leading independent directories

The biggest collection of top-quality names - a really able bunch of people. Chambers 2015WINNER

Berwin Leighton Paisner’s ‘outstanding’ department is ‘very strong’ and ‘at the top of its game’, and has a growing international practice.Legal 500 2015

Sector highlightsSector highlights

04/ Construction and engineering dispute resolution Construction and engineering dispute resolution /05

Power We act for project sponsors, lenders, owners and contractors advising on all aspects of the funding and construction of major power and pipeline schemes. We act for a worldwide developer of power projects, who we are currently representing in an ICC arbitration in relation to a European project which was subject to considerable delays in its commissioning phase.

Water We have one of the most experienced and well established water industry practices in the UK, serving a long list of domestic and international clients. Our clients comprise many major companies in the UK water sector, as well as overseas governments and some of the largest utility companies. We recently acted for a Middle Eastern water company in a large dispute relating to the construction of a new desalination plant. The dispute arose under the FIDIC Silver Book contract which provided for ICC arbitration. We assisted with negotiating a settlement, avoiding the need for formal proceedings.

Infrastructure and building Our team has extensive experience in providing legal advisory services on public and private sector infrastructure projects worldwide and has the most innovative developments in the industry. We represented a property developer and its project vehicle in ICC arbitration proceedings against a Turkish contractor active in the Moscow market. The claim concerned delays to and cancellation of an iconic office development in Moscow. The claim was highly complex and involved technical evidence from experts in six separate disciplines.

Transport We handle all types of infrastructure-related transport matters particularly in the road and rail sectors. We advised the London Underground in relation to contract management, dispute resolution issues arising out of its PPP/PFI contracts for the £30bn upgrade of London’s tube network. These contracts involved complex contractual and technical engineering issues that were resolved through a tiered dispute resolution process involving a dispute review board, adjudication and High Court litigation.

Shipbuilding and related facilities In this ever-changing and increasingly regulated environment, our lawyers provide commercially-driven and forward-thinking advice on the opportunities and challenges which are reshaping the shipping and offshore industry. We recently advised a leading Danish equipment and service supplier in the marine sector in relation to a supply contract with a Korean shipbuilding company for boilers/burners to be installed in vessels built for a Greek marine company.

Oil and gas We have a strong track record of advising in the oil, gas and petrochemical sector. We have been involved in disputes concerning equipment purchase agreements, EPC contracts, operation and maintenance contracts and supply agreements. We recently advised a large Kuwaiti contractor in relation to disputes regarding a major crude oil processing plant in Northern Kuwait under the rules of the LCIA.

Renewables and nuclear We have a leading renewable energy practice which advises across the sector on all areas relating to the development, financing and operation of renewable energy assets and infrastructure. We have advised on a broad range of renewables transactions, including solar PV, combined heat and power (CHP) plants, biomass plants, both on and off shore wind farms, hydro projects, energy from waste plants and landfill gas schemes. We acted for United Kingdom Atomic Energy Authority in a number of contractual disputes arising out of nuclear decommissioning contracts.

Hotels and leisure We have been ranked as Tier 1 for our work in the hotel sector by legal directories in 2013. We have represented a leading Spanish hotel chain in connection with one of its UK developments in a series of disputes arising from delays to the development of the common parts of a property, which were to be shared by the hotel and the neighbouring residential development. We have also acted on a number of hotel disputes in the Middle East.

Sector highlights

We represent clients in the High Court, the Court of Appeal and the Supreme Court. We develop strong working relationships with our client’s representatives, employees and consultants from whom we gain an understanding of the project. We act quickly to seize the upper hand, making sure that we engage the best available experts in all engineering or ‘technical’ disciplines, delay analysis, quantum and in international disputes local law. We effectively manage experts to provide strategic direction and work with them to prepare targeted expert reports and opinions to assist with dispute resolution. By keeping clients updated with fee and timing estimates and our advice as to prospects as new evidence and issues come to light, we try to minimise the uncertainty of litigation.

Litigation

Clients are increasingly asking us to advise on alternative processes to maximise the likelihood of an amicable settlement prior to commencing or during formal proceedings. Other times, contracts require parties to exhaust such alternatives in the hope that parties can avoid the time and cost of litigation. We often assist clients with negotiating favorable settlements through alternative dispute resolution mechanisms.

Mediation, expert determination and other forms of ADR

We have considerable experience in the conduct of international arbitrations across a range of sectors, geographies and jurisdictions. We take pride in giving specialist advice on the full range of important legal and tactical issues that arise before, during and after proceedings: from advising our clients on selecting the law governing the substance of the arbitration, the seat of arbitration or the arbitration institution (if one is used), to the identity and choice of arbitrators and the procedure and timetable best designed to suit our client’s case. We are also highly experienced in pursuing the enforcement of awards once obtained, in both local and foreign jurisdictions.

International arbitration

From our offices based across MENA and Asia, we routinely provide project advisory and contentious advice to clients where the governing law is local law and, where necessary, we work with local lawyers drawn from our extensive Preferred Firms Network. We have assisted clients with some of the most iconic schemes in these regions in both local and international arbitrations, and with managing cases in the local courts.

Regional hubs

Our team has acted in many of the new Supreme Court and Court of Appeal cases that have established some of the key principles of professional negligence in the UK. We are frequently instructed by property companies, employers and contractors to bring professional negligence claims against valuers and other professionals. Recently, we represented an electricity generation company in a claim in the High Court for professional negligence against geotechnical advisers, resulting from the collapse of a water tunnel in a hydroelectric power project in Panama.

Professional negligence

We understand that with a short timeframe to determine disputes in adjudication and through dispute adjudication boards (DABs), it is imperative that your legal advisers rapidly identify the key issues, focus on where the money is, draft concisely and work with clients’ teams to put together robust, credible evidence and keep the big picture in mind. Our team regularly advises clients on the technical use of DABs and have been involved in a number of disputes referred to DABs for resolution.

Adjudication and dispute adjudication boards

In our international work we can call on the support of our international offices as well as the firm’s “preferred firms”. The firm has non-exclusive, actively managed relationships with a panel of two or more “preferred firms” in over 50 countries around the world.

Preferred firm network

We advise our clients as to the interpretation of and as to their rights generally under joint venture agreements and seek to resolve disputes between joint venture partners.

Joint venture disputes

The nature of our work The nature of our work


The nature of our work

The nature of our work

Project support servicesProject support services

Project support services A central part of the service we provide is to work with our clients’ project teams to manage risks while projects are underway.

Disputes are inevitable on major projects. However, in our experience, the vast majority of contractual and legal issues can be resolved or reduced at an early stage with effective management.

We work to preserve our clients’ contractual position with firmness but without unnecessary aggression, maintaining good relations with other project participants.

On most projects, our clients’ counter-parties will not be aware that lawyers are involved: we will be in the background, only ‘breaking cover’ when it is in our clients’ best interests to do so.

Claims workWe work with clients to: • prepare their claims for extensions of time/

concurrent delays/loss and expense claims; • determine claims, including detailed analysis

of claims;• negotiate claims, entitlements and/or liabilities;• amend contracts and/or help to negotiate

new contractual arrangements where necessary; and

• advise on the valuation of variations and/or the compilation of specific costs claims.

Monthly review meetingWe deliver project support services in monthly review meetings, covering: • giving ad hoc project advice; • advising on the meaning and effect of

relevant contract provisions;• advising on strategic approach to defending

potential liabilities and/or advancing claims;• reviewing and/or drafting notices or other

correspondence as required;• advising on the records the project team

should keep to substantiate entitlements and/or defences; and

• reviews of any documentation relevant to any legal/contractual issues arising in advance of the meeting.

Risk managementAll of our work involves the assessment of risk and we seek to advise clients from the outset of their potential exposure and the options available to them to avoid disputes and limit their risk exposure. We regularly:• assist clients to strategise to mitigate the risks

of potential liabilities;• deliver training on the key contract clauses

and risk management;• advise on entitlements to extensions of time

and additional payment; • advise on the steps to preserve and progress

entitlements;• advise on (and often draft) important

contractual correspondence;• advise on the meaning and effect of key

contract clauses;• advise on the steps to take at contractually

significant milestones; and• advise on the best strategy for the

development of the project programme.

Early resolution of issuesWith our commercial acumen we move quickly to identify what is important to our clients and what they will consider to be the successful resolution of a dispute. Experience has shown that by engaging legal advice at an early stage before disputes escalate, a well-drafted letter or commercial meeting may achieve our clients’ goals, particularly during live projects.

Preserve client relationshipsWe understand that maintaining relationships with all project stakeholders is key to our clients’ businesses. We seek to navigate resolutions which preserve these essential relationships, whether a project is still underway, or where the parties are likely to be undertaking future projects together.

Sharing experienceWe seek to share our experience base with clients’ teams, including in-house counsel, to assist with improving internal processes. For example, we have provided training to our clients on creating documentary trails, handling extension of time/loss and expense/variation claims.

08/ Contentious construction and engineering Contentious construction and engineering /09

Abu DhabiAdvising a major Middle Eastern contractor in related DIAC arbitrations for the recovery of additional prolongation and other costs.

AlgeriaAdvising a world leading engineering, construction and services company in relation to an EPC contract for a new LNG Train at Skikda, Algeria. The contract value is approximately £2.8bn and the EPC works involve a new LNG train which is to produce 4.5m tons of LNG per year.

CaribbeanActed in a dispute between the national oil company of a Caribbean nation and a Canadian EPC Contractor concerning the refurbishment of a petroleum refinery owned by the national oil company.

Trinidad & TobagoAdvising a contractor on disputes arising out of the construction of a major sports stadium.

AustraliaRepresented an energy company based in Perth, in relation to a claim made against a US energy consultancy services firm for US$20m in relation to negligent investigation work concerning gas content analysis and permeability testing, in respect of target coal seams on the South Wales coal base.

BulgariaRepresenting the Bulgarian subsidiary of a U.S. energy company in a high value UNCITRAL arbitration regarding the failure to properly design and build a lignite-fired power plant in Bulgaria.

DenmarkAdvising Aalborg Industries, a Danish engineering company, in relation to the design, supply and installation of boiler equipment for vessels fabricated in Korea’s largest shipyard.

KuwaitActed for Kuwait Controls in relation to disputes with a Korean EPC contractor arising out of the installation of mechanical and electrical equipment in a large crude oil processing plant in Kuwait.

IranAdvised Snamprogetti SpA (part of ENI Group) on a styrene monomer production plant in Bandar Assaluyeh, Iran.

NorwayAdvised in relation to claims between a consortium of major energy companies and their EPC contractor arising out of the engineering, procurement and construction of an LNG facility in Norway. Various contractual issues arose under the contract, which was governed by Norwegian law and the arbitration was conducted under the rules of the Oslo Chamber of Commerce.

SpainRepresented a major Spanish power generator in a complex and high value ICC arbitration relating to a power purchase agreement against a major Western European gas company. The central issues in dispute related to the liability for the cost of additional emission allowances. The Tribunal comprised three well-known international arbitrators. The claim was valued at over €1bn.

DubaiActed for a major international engineering and project management consultancy in relation to claims brought against it by its sub-consultant professional team in relation to the design of the Dubai Metro. Some of the contracts provided for arbitration, others provided for litigation. Favourable settlements were achieved in all disputes.

KazakhstanAdvised ENI Group on projects including the development of the Karachaganak gas reservoir in Kazakhstan.

IrelandAdvised on various contractual issues arising out of the commissioning of a power station and the impact on the programme of delays by the Employer in providing gas/distillate for the commencement of commissioning tests.

OmanAdvising a major construction JV on claims arising out of the employer’s breaches of contract, including for non-payment on a major infrastructure scheme.

TurkeyAdvising Turkish shareholders in a dispute under a JV with a significant London-based investment fund. The dispute involved the funding and development of a port in Turkey. The value of the claim exceeded US$400m.

JapanAssisting leading Japanese contractors and project sponsors on projects in South East Asia, the Middle East and North Africa.

EgyptAdvising a contractor in relation to its potential liability under Egyptian law in relation to a claim for unjust enrichment.

Saudi ArabiaActed for a major Saudi Arabian water company in a dispute relating to a desalination plant and Korean contractor in an ICC arbitration against a Saudi government controlled proposed sponsor.

MalaysiaActed as counsel in an LCIA arbitration for an oil major in Malaysia, concerning production sharing and pipeline operating agreements.

Papua New GuineaAdvising on force majeure issues arising on a major LNG development project.

ItalyAdvised a major Italian oil company on an ongoing basis in relation to the construction of an ethylene processing plant in Iran. Most recently, advising in relation to the EU regulations governing the embargo and control of the export of specialist process engineering components to Iran.

QatarAdvising a power generation and desalination company on two ICC Arbitrations relating to its EPC Contractor’s claims for EOT and extra costs.

GreeceAssisting a petrochemical company in pursuit of claims relating to its ECP contractor’s performance of services on an oil refinery upgrade project.

MoroccoActing in relation to design and engineering issues including advice on the formulation of claims for additional monies in respect of an oil refinery in Morocco under a FIDIC EPC Contract.

Jordan Acting for a subsidiary of a global construction company in a dispute relating to the development of the container terminal in Aqaba, Jordan. The claim, valued at US$70m, is subject to a tiered dispute resolution clause, which includes ICC arbitration.

South KoreaWe regularly work with many of Korea’s leading international contractors. Currently we are advising Korean companies on projects in Saudi Arabia, Abu Dhabi, Turkey and Korea.

RussiaAdvising a major plant and services supplier in relation to LCIA arbitration proceedings concerning a contract for equipment delivery and commissioning of a pelletising plant in Russia.

United KingdomActed on behalf of Yorkshire Water in a £12m claim against Taylor Woodrow and other parties in relation to the construction of a sequence batch reactor at one of Yorkshire’s largest sewage treatment works through to a 3 month trial and an appeal.

YemenActed on a dispute between a major EPC contractor and a consortium of various oil majors arising out of the engineering, procurement and construction of an LNG facility in Yemen. Various contractual issues arose out of the contract relating to concurrent delays which were resolved prior to arbitration.

BahrainAdvising Cavotec Middle East in relation to a dispute with Bahrain Airport Company concerning issues of takeover, extensions of time and performance bonds.

Global advice

Global advice Global advice


United KingdomAdvised Tesco on a very large, multi-party dispute arising from the collapse of a partially constructed tunnel supporting a new Tesco Store. Also advised in respect of claims arising from the development of a Tesco Extra superstore at the Arena 2001 site for Coventry Football Club.

Integrated in-house services

12/ Construction and engineering dispute resolution

Integrated in-house services We are committed to meeting the changing demands and expectations of our clients by striving to provide an innovative approach to resourcing and managing their disputes. The firm’s dedicated in-house advocacy and forensic services are a testament to this commitment.

In-house advocacyWe pride ourselves on our determination and ability to conduct our own advocacy, the firm’s in-house trial advocacy team offers clients a one-stop shop to resourcing and managing major litigation and arbitration. We take pride in our full service offering and ability to take formal proceedings from start to finish, including by conducting the advocacy in final evidential hearings as well as interim or procedural applications if preferred by our clients. By undertaking the role of advocate we are able to offer clients significant savings in costs, and to bring to the role an in-depth knowledge and understanding of the case gained from our concurrent solicitor role. Our solicitor-advocates also have rights of appearance in the Courts of England and Wales.

When we believe using an external barrister is the best solution, we commit to always recommending this. Over the years we have built strong relationships with the Bar and these will continue to develop.

Forensic servicesOur integrated litigation and dispute resolution team incorporates a specialist in-house forensic services group which is led by Paul Bennett, a Fellow of the Institute of Chartered Accountants in England and Wales. This market-leading approach provides our clients with instant access to accounting advice on the financial aspects of litigation, arbitration and investigations as well as forensic technology services. Our clients benefit from greater efficiency in case management, resulting in significant cost and time savings.

Forensic accountingOur in-house forensic accounting unit enables us to examine with clients the quantum aspects of a claim, at a very early stage, before instructing independent experts who may be required. With Paul as part of our team, we are not only better equipped to select the most appropriate independent experts but also to ensure that instructions and documents are provided in a structured and cost efficient way. We are currently:• Working with clients’ accounting and commercial

teams to prepare claims for loss of profits. • Providing comments on claims for damages

received from the other side.• Undertaking detailed analysis and

interpretation of accounting records (ranging from bank statements to complex financial spreadsheets/models).

Forensic technologyOur in-house forensic technology unit provides the capability for data and documentation to be reviewed and hosted using our in-house eDisclosure platform, with support from experienced Forensic Technology professionals. We operate a computerised litigation support system which enables the creation of a database that holds all documentation (including electronic data and original documents) that has been produced by our client and by other parties to the litigation. This enables speedy and effective forensic examination of the documents and also facilitates open access for our client and appropriate access for experts and Counsel with whom we may be working. The use of a document database also assists in the preparation of witness evidence, as it enables coding by reference to witness involvement and the automatic production of witness bundles for use in the proofing of witnesses.

Key contentious construction and engineering contacts

Key contentious construction and engineering contactsEurope

MENA Asia

Russia


BOB MAYNARD Partner - LondonT: +44 (0)20 3400 [email protected]

RICHARD DAVIES Partner - Abu DhabiT: +971 (0)2 652 [email protected]

CATHERINE GELDER Partner - LondonT: +44 (0)20 3400 1000 [email protected]

TERRY DE SOUZAPartner - LondonT: +44 (0)20 3400 [email protected]

CHARLES LILLEYPartner - Abu Dhabi T: +971 (0)2 652 [email protected]

DAVID ROBERTSONPartner - SingaporeT: +65 6571 [email protected]

OLEG ARKHIPOVPartner - MoscowT: +7 (495) 287 44 [email protected]

GLENN HALEYPartner - Hong KongT: +852 3143 [email protected]

RIMMA MALINSKAYAHead of Group - MoscowT: +7 (495) 287 44 [email protected]

ILAN FREIMANPartner - Hong KongT: +852 3143 [email protected]

ELENA TRUSOVAPartner - MoscowT: +7 (495) 287 44 [email protected]

NATALIA BELOMESTNOVAHead of Group - MoscowT: +7 (495) 287 44 [email protected]

GEOFFREY SHAWPartner - Hong KongT: +852 3143 [email protected]

RUSTAM KURMAEVPartner - MoscowT: +7 (495) 287 44 [email protected]

IVAN VESELOVHead of Group - MoscowT: +7 (495) 287 44 [email protected]

CAROLINE POPE Partner - LondonT: +44 (0)20 3400 [email protected]

The team wins praise from sources for being ‘extremely professional and thorough’ and ‘well-organised and motivated.’Chambers 2013

Getting in touchWhen you need a practical legal solution for your next business opportunity or challenge, please get in touch.

LondonAdelaide House, London BridgeLondon EC4R 9HA England

Bob MaynardTel: +44 20 3400 [email protected]

Abu Dhabi20th Floor, Al Sila Tower Abu Dhabi Global Market Square, Al Maryah Island, PO Box 109403, Abu Dhabi, UAE

Richard DaviesTel: +971(0) 2 652 [email protected]

Charles Lilley Tel: +971(0) 2 652 [email protected]

Clients and work in 130 countries, delivered via offices in: Abu Dhabi, Beijing, Berlin, Brussels, Dubai, Frankfurt, Hong Kong, London, Manchester, Moscow, Paris and Singaporewww.blplaw.com

About BLPBerwin Leighton Paisner is an award-winning, international law firm. Our clients include over 50 Global Fortune 500 or FTSE 100 companies. Our global footprint of 11 offices has delivered more than 650 major cross-border projects in recent years, involving up to 48 separate jurisdictions in a single case.

The Firm has won eight Law Firm of the Year titles, is independently ranked by Chambers and the Legal 500 in over 65 legal disciplines and the FT currently ranks us in the top 5 law firm innovators in Europe.

Expertise• Antitrust & Competition• Commercial• Construction• Corporate Finance• Dispute Resolution• Employment, Pensions and Incentives• Energy and Natural Resources• Finance• Funds and Financial Services• Insurance• Intellectual Property• Private Client• Projects• Real Estate• Regulatory and Compliance• Restructuring and Insolvency• Tax

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