UKA 2020 Edinburgh Adjudication & Arbitration Conference pack

2020 EDINBURGH
ADJUDICATION & ARBITRATION CONFERENCE
6 MARCH 2020, RSE, EDINBURGH
CONFERENCE PACK

HANSCOMB INTERCONTINENTAL, 5 CHANCERY LANE , LONDON
www.hanscombintercontinental.com
DISPUTE AVOIDANCE – DISPUTE RESOLUTION – EXPERT WITNESS
PROVIDING SOLUTIONS
TO PROBLEMS

HANSCOMB INTERCONTINENTAL PROVIDE EXPERT SERVICES FOR THE
GLOBAL ONSHORE AND OFFSHORE CONSTRUCTION AND ENGINEERING
INDUSTRIES. OUR EXPERTS WORK ACROSS THREE DELIVERY STREAMS IN
ALL SECTORS OF THE CONSTRUCTION AND ENGINEERING INDUSTRIES IN
EUROPE, ASIA, AFRICA, MIDDLE EAST, AMERICAS AND AUSTRALASIA.
INFRASTRUCTURE
ALTERNATIVE ENERGY
COMMERCIAL
DEFENCE
EDUCATION
FINANCIAL SERVICES
HEALTH
HOSPITALITY
HOUSING
MANUFACTURING
MINING AND METALS
OIL AND GAS
PHARMACEUTICALS
POWER
PUBLIC SECTOR
RETAIL
SCIENCE
SPORT AND LEISURE
TRANSPORT
URBAN DEVELOPMENT
UTILITIES
WASTE
WASTE TO ENERGY
REFURBISHMENT AND MAINTENANCE
OFFSHORE
MARINE ENGINEERING
SHIPBUILDING
PROVIDING SOLUTIONS TO PROBLEMS

DISPUTE AVOIDANCE
PROCUREMENT STRATEGY
CONTRACT DRAFTING
CONTRACT NEGOTIATION
CONTRACT REVIEW
PROCUREMENT
ESTIMATING
TENDERING
PROGRAMMING & PLANNING
COMMERCIAL STRATEGY
COMMERCIAL MANAGEMENT
CONTRACT STRATEGY
CONTRACT MANAGEMENT
SUBCONTRACT MANAGEMENT
EXPERT ADVISORY
DISPUTE RESOLUTION
CLAIMS STRATEGY
CLAIMS
COUNTER CLAIMS
DEFENCES
ORAL ADVOCACY
WRITTEN ADVOCACY
MEDIATION
ADJUDICATION
DISPUTE BOARD
EXPERT DETERMINATION
ARBITRATION
LITIGATION
EXPERT ADVISORY

EXPERT WITNESS
EXPERT WITNESS PROJECT MANAGEMENT
QUANTUM EXPERTS
DELAY ANALYSIS EXPERTS
CONTRACT EXPERTS
LEGAL EXPERTS
FORENSIC ACCOUNTING EXPERTS
ARCHITECTURAL EXPERTS
CIVIL ENGINEERING EXPERTS
MECHANICAL ENGINEERING EXPERTS
STRUCTURAL ENGINEERING EXPERTS
ELECTRICAL ENGINEERING EXPERTS
GEOLOGICAL ENGINEERING EXPERTS
MARINE ENGINEERING EXPERTS
EXPERT ADVISORY

EXPERT WITNESS SERVICES
Our team comprise expert witnesses with experience of
being cross examined in litigation, arbitration, adjudication
and before Dispute Boards.
Disputes requiring technical expertise often involve an
elaborate technical matrix of fact and opinion. Complex
investigations, interrogation and interpretation of the cause
and impact of various competing causes are required.
We will deliver concise reports that explain complex
technical interactions in a clear and unambiguous manner.
DISCIPLINES INCLUDE:
Quantum
Delay Analysis
Architecture
Building Services
Civil and Structural Engineering
Construction and Engineering
Contract Administration
Mechanical and Electrical Engineering
Project Management
We are happy to provide an independent view on the
merits of any potential action and of any remedial works
proposed or already undertaken.
OUR EXPERTS COMPLY WITH A SET OF STRICT CRITERIA:
A minimum of 25 years’ industry experience;
They have cross examination experience;
They have been trained in the expert’s duties in both Litigation
and Arbitration and hold third party expert witness accreditation.

NEW YORK
+1 646 535 5976
americas@hanscombintercontinental.com
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+852 8198 1061
asia@hanscombintercontinental.com
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+27 12 743 6534
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LONDON
+44(0)20 3287 8518
eume@hanscombintercontinental.com
NEW YORK
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HONG KONG
HANSCOMB INTERCONTINENTAL’S GLOBAL REGIONAL OFFICES

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2020 EDINBURGH ADJUDICATION
& ARBITRATION CONFERENCE
6 MARCH 2020

DRINKS &
NETWORKING
SPONSOR
DONNY MACKINNON
MACKINNON CONSULT

SPEAKERS
DINNER
SPONSOR
HANSCOMB INTERCONTINENTAL

MOOT
WORKSHOPS
Wellcome East Room
9.30 10.30
History of the Moot, What you can gain from it
personally and how to maximise your participation as
an individual and team
10.45 11.45 Oral & written advocacy skills for the Moot
2.00 3.00
What do arbitrators want from you ? War stories from
arbitrators the good , the bad and the ugly & Question
& Answer - your chance to question the arbitrators

MAIN
CONFERENCE
Wellcome West Room
09.30 to 10.30
ADJUDICATION

womblebonddickinson.com
North and South – an Adjudication Update
Lisa Dromgoole, Womble Bond Dickinson
6 March 2020

• Differences in approach between Scotland and England
• Binding or just persuasive
• Severance
• Without Prejudice Communications
• Personal Bar (or Estoppel)
• Prescription and Limitation
• Human Rights
p9

Scotland vs the rest of the UK

• Technology and Construction Court• Court of Session
• Sheriff Courts across Scotland
• Commercial Procedure
Enforcement Actions

• Babcock Marine (Clyde) Ltd v HS
Barrier Coatings Ltd [2019] EWHC
1659
Forum Shopping

• Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC)
• “a core nucleus”
• Dickie & Moore Ltd v McLeish (No2) [2019] CSOH 87
Severance of an adjudicator’s award

• Unilever v Proctor & Gamble Co [2000]
1 WLR 2436
• Transform Schools (North Lanarkshire)
Ltd v Balfour Beatty Construction Ltd
and another [2000] CSOH 19
Without prejudice communications

• Distinct differences between the two
concepts
• England and Wales or Scotland?
Estoppel or personal bar?

• Time limits
• Midlothian Council v Bracewell Stirling
Architects & others [2019] CSOH 29
• Prescription & Limitation (Scotland) Act
2018
Prescription and Limitation

• Right to a fair trial?
• Whyte and MacKay v Blyth & Blyth
Consulting Engineers [2013] ScotCS
CSOH 54
• Lindum Group Ltd v Fernie & another
[2014] EWCA Civ 124 (unreported)
Human Rights?

• Separate and distinct jurisdictions
• Authority from one may be persuasive
in another but not binding
• Adjudicator’s have to consider carefully
what that means
Scotland vs England and Wales

Adjudication: 10 Mistakes to Avoid
Peter Clyde

Introduction - AG
Peter studied law at Cambridge. He specialises in
the resolution of construction and engineering
disputes. Peter has a wide range of experience of all
manner of construction disputes (from defects claims
to complex extension of time and final account
disputes).
Peter also has in-house experience at Balfour
Beatty, where he reported to the Group board,
assisting with the firm’s turnaround strategy, and co-
founding a claims team to homogenise the firm’s
approach to managing legal work.
Peter Clyde
Managing Associate,
Construction Engineering and
Environment

Introduction - AG
4,000+
clients
£240m
income
250
partners
1,800
people in total
1000
fee earners
Across 8 jurisdictions
With
12offices
UK Top 10
by headcount
UK Top 15
by income
SERVICE LINES
SECTORS

10 Mistakes to Avoid in Adjudication

10 Mistakes to Avoid in Adjudication
A. Jurisdiction
B. Procedure
C. Substance
D. Prescription

A. Jurisdiction
Mistake 1 Getting the contractual basis for the adjudication wrong /
failing to challenge an errant basis
▶Construction Act says party to a relevant construction contract may adjudicate at
any time
▶An adjudicator’s jurisdiction thus partly depends on identification of a construction
contract
▶Errant identification of the contract will lead to adjudicator lacking jurisdiction and
decision being invalid

A. Jurisdiction
Mistake 2 No crystallised dispute / particularised head of loss
▶There is no right to adjudicate unless a dispute exists (s.108(1) of the Construction Act).
▶If there is no dispute it is possible to:
▶challenge the reference to adjudication; and/or
▶resist enforcement of the adjudicator’s decision.
▶The referring party will need to show:
▶a claim has been made;
▶the responding party has received sufficient information to enable it to consider the claim; and
▶the claim has not been admitted – either express rejection or rejection inferred from
discussions, prevarication or silence.

A. Jurisdiction
Mistake 3 Being too specific with request for relief
▶Adjudicator’s jurisdiction drawn largely from the Notice of Adjudication
▶An adjudicator can only grant the relief requested in that Notice and
cannot go beyond it

A. Jurisdiction
NB – Adjudicator does not have power to determine his or her own
jurisdiction

B. Procedure
Mistake 4 - Missing deadlines – could invalidate decision
▶Referral notice
▶Adjudication timetable generally

B. Procedure
Mistake 5 – Nomination mistakes
▶E.g. applying before notice served
▶E.g. approaching adjudicators too early

B. Procedure
Mistake 6 – Failing to consider timetable

C. Substance
Mistake 7 – Pissing off the adjudicator
▶E.g. with groundless jurisdictional challenges

C. Substance
Mistake 8 – Not checking witness statements properly

C. Substance
Mistake 9 – Disclosing documents or emails accidentally

D. Prescription
Mistake 10 – using adjudication to interrupt prescriptive period

Thanks and contact
Peter.clyde@addleshawgoddard.com

MAIN
CONFERENCE
Wellcome West Room
10.45 to 11.45
DISPUTE BOARDS

MAIN
CONFERENCE
Wellcome West Room
DISPUTE BOARDS

Construction Disputes & Advisory
Dispute Boards
from the parties’ perspective
IAIN AITCHISON
Managing Director I Global Construction Practice, EMEA
+44 (0) 207 469 1185
Iain.aitchison@ankura.com

Dispute Boards - Theory and Practice
INTRODUCTION
Theory
DAB is a form of international Adjudication - not all legal systems understand Adjudication.
UNCITRAL conventions include Mediation and Arbitration, but not Adjudication.
Practice
Dispute Boards are often deleted from Contracts - no access to a ‘neutral’ interim Decision.
DAB procedure often closer to Arbitration - DAB is not final and may not be enforceable.
If the final resolution is not international Arbitration, then DAB becomes even more relevant.
‘Standing’ DABs can give an Opinion – do the parties know how/when an Opinion could help?

Better to have a Decision or an Agreement?
DAB or DRB
Referral Pleading Hearing
Expert
Reports
Typical Duration 8-12 weeks *
DAB
Decision
Expert
Review
Additional
Information
Clarifications
Assess
and
Report
Structured
meetings
DRB
Recommendation

Case Study 1 - The problem
EMPLOYER’S DAB TEAM
DABs
Employer was state utility and effectively construction manager
6 key major contracts, many minor contracts
Around 40 no. DAB referrals on the horizon, some already in progress or decided
Many different types of DABs, on some contracts the DAB was not even appointed
Claims
Extension of Time (delay and disruption, liquidated damages)
Variations

Appointment as Employer’s DAB team
EMPLOYER’S DAB TEAM
Expert
Review
Safe
Forum
Listen to
parties
Term
Sheet for
past and
future
Notified
Contractual
Equitable
Settlement
Even with a DAB, this may not be enough if the contract administration has broken down. The
DAB can give an DAB Opinion if the parties can agree on a consensual referral. A unilateral
referral will result in a DAB Decision, but this may not resolve underlying project problem(s).
Once the administration has broken down, the backlog may be better addressed with a back-
to-basics approach, where the parties engage with a neutral third party on an structured basis.
Key Message – DABs too distant to project issues, so parties sought expert
recommendation(s).
Methodology
Transparent
Process from
dispute to
Agreement of
Addendum

Case Study 2 - The problem
DAB
Employer was effectively public sector
Final resolution was Court in the Employer’s jurisdiction
DAB had been deleted from Contract
Claims
Extension of Time (delay and disruption, liquidated damages)
Variations
JOINT APPOINTMENT (DRB)

Joint Appointment as ‘Ad-Hoc’ DRB
JOINT APPOINTMENT (DRB)
Expert
Review
Additional
Information
Clarifications
Assess
and
Report
Structured
meetings
The parties had removed the DAB from the contract. The parties agreed that a stage between
the Engineer and the Court could assist the parties in resolving their differences. The parties
agreed on a consensual referral of representative claims to the DRB. The DRB gave an
reasoned opinion, however this relied on the trust in that opinion to implement the
recommendation(s).
Once the administration has broken down, the backlog may be better addressed with a back-
to-basics approach, where the parties engage with a neutral third party on an structured basis.
Key Message – The DAB was replaced with a DRB which could give an expert recommendation.
Methodology
Informed and
transparent
process
facilitating
Agreement

SPEAKER PROFILE
Iain Aitchison
Architect LLM MArch DipICArb FCIArb FDBF CEDR Accredited Mediator
Iain Aitchison is a Managing Director in the Global Construction Practice
in based in London, formerly with Navigant, acquired by Ankura in
2018. He is registered as an Architect in Germany and the UK, is a
Fellow of CIArb in international arbitration, a Fellow of the Dispute
Board Federation (FDBF), a Professional Member of the Dispute
Resolution Board Foundation, and listed on the CIArb Dispute Board
Panel. He is a FIDIC contracts specialist and a DBF accredited Dispute
Board Member.
He trained as an Architect in the UK and has experience from projects in
the public sector; international private sector and multi-disciplinary
practice. His work in Germany achieved firsts in planning, building and
environment permissions for multinational clients in automotive,
chemical and space infrastructure. He has experience of DAB and DRB
including for a power utility in Africa managing multiple DAB’s for the
Employer, and in negotiating settlement of claims with international
contractors. He has served on a DB in the Middle East. He has been
instructed as a Delay Expert in ICC Arbitration and in UK Adjudication.
Arbitrator at the Edinburgh University and Munich Viz pre-moot in
2020.

FIDIC/ICC Conference in Bogota
2020 Edinburgh Adjudication & Arbitration
Conference
The Effective Use of Dispute
Boards
Murray Armes
6 March 2020

WHAT DO DISPUTES BOARDS DO?
• Monitor the Project
• Site visits and meeting with the parties
• Review documents and visit the site
• To help avoid disputes
• Maintain communications between the Parties
• Suggest ways of working out problems at an
early stage
• Provides a high level forum for discussion of issues
• To resolve disputes
• Casts a “long shadow”
© 2019 Murray Armes

A TYPICAL SITE VISIT/MEETING
• Introductions
• Presentations by the parties
• Presentation by Employer and/or Engineer
• Presentation by Contractor
• Discussions
• Matters of Concern
• Is there a correct sequence?
• Site visit report to include:
– List of attendees
– Itinerary and description of activities
– Summary of presentations
– Status of works, matters of concern
– DAAB observations
– Next meeting date or dates

SOME PROBLEMS WITH MEETINGS
• Promote discussion but never (appear) to side with
one party
• Parties tell a different story and have different views
of the project (ships in the night), what can you do?
• Sequential presentations means the parties do not
interact with each other
• May not even be listening to each other
• Parties develop own agenda
• Often parties are saying the same thing but in a
different way
• Dispute avoidance is not mediation, but the
techniques are useful!
• Lawyers attend the meetings
• Discussions become very legalistic

SOME SOLUTIONS -1
• Remind the Parties of their joint Mission Objectives
• How to get the parties talking in meetings?
• If sequential presentations ask questions of the
other party, do they agree/disagree, have anything
else to add?
• Replace sequential presentations with issue by
issue agenda…
• …this forces the parties to talk about the most
important issues
• If a meeting is in deadlock get both parties to
individually set out what each thinks the other wants
(the similarities can be striking!)

SOME SOLUTIONS -2
• Don’t be afraid to make recommendations or
observations in the DAB Report (not the same as
non binding recommendations)
• The longer the project goes on the more important
this is and mostly the parties will welcome the
interventions because they are already aware of the
problems themselves
• Make the observations part of the next agenda
• Make sure the Parties are aware of any agreed
actions and record them in the Site Visit Report
• Not everything can be resolved at the meeting: set
deadlines for the parties to respond with the results
of agreed actions and remind them if they don’t

SOME SOLUTIONS -3
• Not everything can be resolved at the meeting: set
deadlines for the parties to respond with the results
of agreed actions and remind them if they don’t
• Formal site meetings may be too widely spaced
• Suggest intermediate conference calls to coincide
with important actions and events that lie outside the
normal meeting schedule: shows you are interested
and available and keeps the parties on their toes
• Sometimes Parties are reluctant to discuss the
issues…
• …it is your job to make sure they do
• Ask open questions, be fair and neutral, but
searching if required
• Don't be afraid to challenge the Parties and make
them face up to reality

NON BINDING RECOMMENDATIONS
• One of the most powerful tools the DAB has
• Is there a procedure to follow?
• Is there a provision in the DAB procedures?
• Obtain party consent
• Should normally be written, not necessarily whilst on
site
• Make it clear that neither the parties nor the DAB
are bound by the recommendation, especially if the
dispute is formally referred with additional evidence
• Ask Party A to request the recommendation in 14
days
• Party B to respond in 14 days
• Produce it quickly, say after 14 days if possible
• Most of the time this will be the end of the matter

CONCLUSIONS
• Site visits and meetings sets the DAAB process apart from other
forms of dispute resolution
• It is dispute avoidance in action
• Regular visits focuses the Parties
• May encourage them to settle amongst themselves (long shadow)
• Promotes discussion of difficult topics
• Sets the agenda for, and tone of, dispute avoidance for the whole
project
• The DAB must:
• Have a light touch
• Be neutral and tactful
• Whilst not allowing a Party to avoid difficult issues
• Be patient and resourceful
• The Parties must:
• Cooperate with the DAAB and each other
• Be candid and open

CONCLUSIONS
• Remember…there will always be disagreements,
even on the best projects.
• Despite the uncertainties and difficulties, disputes
can be avoided
• DAABs have an excellent track record in assisting
project success
• Remember…you have a choice… and the
alternative involves a lot of time, huge cost and a big
risk to reputation

MAIN
CONFERENCE
Wellcome West Room
11.45 to 12.45
Arbitration - Remedies for
Breach of Contract

Remedies for breach of contract at
common law
Gavin Chesney
International Counsel
Debevoise & Plimpton LLP
6 March 2020

Contractual remedies – an overview
• Three main categories:
− Damages
– Equitable remedies
– “Other”
» Debt
» Recovery of price paid
» Quantum meruit/valebat
» Account of profits
64

Damages – The general rule & applicable measure
• General rule:
“…where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it,
to be placed in the same situation with respect to damages, as if the contract had been
performed.”
Robinson v Harman (1848) 1 Exch. 850, 855 per Parke B
• Measure:
– ‘Expectation interest’. Two principal methods:
» Difference (‘diminution’) in value; or
» Cost of cure.
• Date assessed:
– Almost invariably at the date of breach, but exceptions.
65

Damages – Mitigation, causation & remoteness
• Duty to mitigate:
– The innocent party must take reasonable steps to mitigate his loss by seeking an alternative to
performance where possible.
• Causation:
– The breach must be the effective cause of the damage.
– A common-sense approach: Galoo Ltd v Bright Grahame Murray [1994] WLR 1360.
• Remoteness:
– The damage cannot be too remote.
– Hadley v Baxendale (1854) 23 LJ Ex 179
– The “Achilleas” [2008] UKHL 48
66

Wrotham Park (‘negotiating’) damages
• A reasonable fee that the claimant would have charged in a hypothetical negotiation, in return for its
consent to the defendant’s breach of a negative covenant.
• Late 20th and early 21st century cases suggested that Wrotham Park damages might be applicable beyond
proprietary cases.
• However, see recent case of Morris-Garner v One Step (Support) Ltd [2018] UKSC 20.
67

Equitable remedies
• Specific performance:
• Discretionary equitable remedy, which compels the defaulting party to perform his contractual obligations.
− Only granted where damages are not adequate (e.g. where subject matter is unique): Falcke v
Gray ([1859] 4 Drew651 (Chinese vases).
− Not usually granted where Court supervision required (Co-op Insurance v Argyll Stores [1997] 3 All ER
297) or for personal services.
• Injunction:
• Discretionary equitable remedy, which restrains the defendant from starting or continuing a breach of a
negative covenant (“prohibitory”) or compels performance of a positive covenant (“mandatory”).
68

Other remedies
• Action for the agreed sum.
– Sometimes called an action in debt.
– No need to prove loss, and the rules of mitigation, causation and remoteness do not apply.
• Recovery of price paid.
– Goods rejected after price paid and contract discharged.
– There will usually have been a total failure of consideration (useful where bad bargain), though partial failure
of consideration may be enough.
• Quantum meruit/valebat.
– Services or goods provided, no price agreed.
– The seller is entitled to a fair price: s.8(2) SGA 1979 and s15(1) SGSA 1982.
• Account of profits.
– Exceptional remedy: Attorney General v Blake [2001] I AC 268.
– Addresses injustice where defendant gains from his breach of contract.
69

CONFIDENTIEL
ARBITRATION - REMEDIES FOR BREACH OF
CONTRACT
6 March 2020
FRANCE

71
CONFIDENTIEL
INTRODUCTION
French law allows a considerable amount of discretion to a Tribunal
deciding on remedies.
Civil Code (as revised following the reform of French Contract law, by
Order no. 2016-131 of 10 February 2016 and law no. 2018-287 of 20
April 2018), Article 1217:
”A party towards whom an undertaking has not been performed or has been performed imperfectly,
may:
- refuse to perform or suspend performance of his own obligations;
- seek enforced performance in kind of the undertaking;
- obtain a reduction in price;
- provoke the termination of the contract;
- claim reparation of the consequences of non-performance.
Sanctions which are not incompatible may be combined; damages may always be added to any of
the others.”
Ancillary Remedies
− Interim and final injunctions
− A "judicial penalty" (astreint) in order to compel a party to comply with an order
− Declaratory relief is not common, but it is sometimes granted.
ARBITRATION - REMEDIES FOR BREACH OF CONTRACT - FRANCE

72
CONFIDENTIEL
SPECIFIC PERFORMANCE
Civil Code, Article 1221:
“A creditor of an obligation may, having given notice to perform, seek performance in kind unless
performance is impossible or if there is a manifest disproportion between its cost to the good faith debtor
and its interest for the creditor”.
Specific performance is regarded as the primary remedy for a breach of contract, with damages being a
secondary remedy
Alternatively the creditor can arrange for a third party to perform the
obligation and reclaim the cost (Civil Code, Article 1222).
Conditions for specific performance:
− The creditor must first give the party in breach notice to perform (mise en demeure).
− Specific performance cannot be ordered if it is impossible to carry it out.
− Or if it is manifestly disproportionate.
The parties can exclude or limit the right to specific performance in their
contract.

73
CONFIDENTIEL
REDUCTION IN THE CONTRACT PRICE
A new remedy introduced by the 2016/ 2018 reforms.
Article 1223 of the Civil Code (applicable to contracts concluded after 1
October 2018):
"In the event of imperfect contractual performance, a creditor may, after giving notice to perform and if he has
not already paid in full or in part, notify the debtor as soon as possible of his decision to reduce the price
proportionally. The acceptance by the debtor of the creditor's decision to reduce the price must be given in
writing.
If the creditor has already paid, in the event that the parties do not agree, he may ask the judge to reduce the
price".
Conditions:
− One party to a contract fails to perform properly,
− The other party gives notice to perform,
− And either:
− The price has not been paid, in which case the non-defaulting party can notify its decision to the defaulting party ; or
− The non-defaulting party has already paid, in which case it can apply to the court.
.
The parties can contract out of this remedy.

74
CONFIDENTIEL
TERMINATION
Article 1224 of the Civil Code provides three possibilities:
− Termination in accordance with a contractual termination clause.
− If the breach is "sufficiently serious", termination by giving notice.
− Or, if the breach is "sufficiently serious", termination by order of a court/ tribunal.
Requirement to give notice to perform (mise en demeure) unless
applying for an order of a court/ tribunal.
Consequences of termination:
− Puts an end to the contract retrospectively.
− If there has been part performance which has no value in the absence of the entire performance of the
contract, the parties must each give restitution for the value they have already received.
− If there has been part performance which is of value and this has been paid for, no need for restitution.
− Does not affect the dispute resolution clause, nor other clauses intended to survive termination (eg.
confidentiality, non-compete, etc.).
− Does not prevent the innocent party from also claiming damages.
The parties can contract out of the right to terminate the contract for
breach.

75
CONFIDENTIEL
DAMAGES AND INTEREST
Calculation of damages is based on the principle of "full redress"
(réparation intégrale) see Cass. civ. 3e, 4 juin 2014, n° 13-16.333
− Aims to satisfy, to the extent that money allows for this, the interest that the claimant had in the performance of
the contract (expectation interest).
− May include loss of profit or compensation for any loss suffered (Civil Code, Article 1231-2).
− There is no provision for punitive or exemplary damages.
Damages must be foreseen or foreseeable, except in case of gross
negligence or dishonesty (Civil Code, Article 1231-3).
The amount is a matter for the "sovereign appreciation" of the arbitrator.
− In practice, the decision will often be taken on the basis of reports submitted by the Parties' quantum experts.
− But the Tribunal is not bound to accept the methodology of either one or the other expert - it can adopt an
intermediary solution. (Paris Court of Appeal, 8 January 2013, SA Inversiones, Rev. arb., 2013.293).

76
CONFIDENTIEL
DAMAGES AND INTEREST II
The creditor can also claim interest (regarded as damages due for the
delay in performance - see Civil Code Article 1231-2).
The creditor must give notice to perform (mise en demeure). Interest
starts running only from the date of this notice.
Contractual modifications of the amount of damages is possible – the
parties can include limitation clauses in the contract.
The parties can also fix the amount by reference to a penalty clause:
− Civil Code, Article 1231-5 states that penalty clauses are permitted, but that a court (or arbitrator) may
increase or decrease the amount of the penalty if it is derisory or manifestly excessive.
− It is not possible to contract out of this possibility.

VOS CONTACTS
Natasha Peter
•Avocat au Barreau de Paris – Counsel – Barrister
•International Arbitration
 +33 (0)1 40 75 94 55
 peter@gide.com
Gide Loyrette Nouel A.A.R.P.I
15 rue de Laborde - 75008 Paris
Tél. +33 (0)1 40 75 60 00

Basel | Zürich | Bern
Remedies for breach of
contract under Swiss Law
(including the CISG)
Michael A. Schifferli, Attorney-at-Law
6 March 2020

Introduction
(Major) Differences between Swiss Law and the CISG:
• A contract for work and delivery is considered a contract for work
and labour under Swiss law but a sales contract under the CISG
• Swiss laws know different types of «breaches» of contract:
• Late performance
• Delivery of goods of lesser quality
• Delivery of the wrong goods (i.e. non-performance)
• (Impossibility to perform the contract)
• The CISG only differs between fundamental / non-fundamental
breach
• The Duty to inspect and notify upon delivery is only a few days
under Swiss law, 4 – 6 weeks under the CISG
Remedies for breach of contract under Swiss Law | 6 March 2020
Page 79

Late delivery
• Code of Obligations, Art. 102
1 Where an obligation is due, the obligor is in default as soon as he receives a formal reminder from the obligee.
2 Where a deadline for performance of the obligation has been set by agreement or as a result of a duly exercised
right of termination reserved by one party, the obligor is automatically in default on expiry of the deadline.
1 Where the obligor under a bilateral contract is in default, the obligee is entitled to set an appropriate time limit for
subsequent performance or to ask the court to set such time limit.
2 If performance has not been rendered by the end of that time limit, the obligee may compel performance in
addition to suing for damages in connection with the delay or, provided he makes an immediate declaration to
this effect, he may instead forego subsequent performance and either claim damages for non-performance
or withdraw from the contract altogether.
Page 80

Late delivery (II)
• 3 remedies available:
➢ Require specific performance and claim damages
➢ Forego performance and claim damages according to the «positive interest»
➢ Terminate the contract and claim damages according to the «negative interest»
• Conditions:
➢ Formal notice or fixed date for performance
➢ Obligor fails to perform within additional period of time
Page 81

Delivery of «lesser» goods
• Delivery of «non-conforming» goods / goods of a lesser quality than agreed upon in the
contract = «peius» delivery
1 The buyer must inspect the condition of the purchased object as soon as feasible in the normal course of
business and, if he discovers defects for which the seller is liable under warranty, must notify him without delay.
2 Should he fail to do so, the purchased object is deemed accepted except in the case of defects that would not
be revealed by the customary inspection.
3 [...]
Page 82

Delivery of the «lesser» goods (II)
1 In claims for breach of warranty of quality and fitness, the buyer may sue either to rescind the contract of sale
for breach of warranty or to have the sale price reduced by way of compensation for the decrease in the
object’s value.
2 [...]
3 [...]
Code of Obligations, Art. 206
1 Where the contract of sale is for delivery of a specified quantity of fungibles, the buyer may choose to bring
action either for rescission or for a reduction in the sale price or to request other acceptable goods of the
same kind.
2 [...]
Page 83

Delivery of the «lesser» goods (III)
1 […]
2 The seller must reimburse to the buyer the sale price paid together with interest and, in accordance with the
provisions governing full dispossession, compensation for litigation costs, expenses and the loss or damage
incurred by the buyer as a result of the delivery of defective goods.
3 The seller is obliged to compensate the buyer for any further loss or damage unless he can prove that no fault is
attributable to him.
Page 84

Delivery of the «lesser» goods (IV)
• 2 remedies available:
➢ Terminate the contract
→ Claiming consequential damages is possible if buyer proves that the damages are the seller’s
fault.
➢ Ask for a reduction in price
➢ In case of fungible goods, require delivery of substitute goods
• Conditions:
➢ Performance not according to the contract
➢ Notification of fault within days after taking delivery
→ The buyer has no right to repair / deliver substitute goods
→ The seller usually cannot insist on performance for specific goods
Page 85

Delivery of «wrong» goods
• Delivery of wrong goods = aliud delivery
example: delivery of a car with manual gear instead of automatic gear (BGE 94 II 30)
• Aliud deliveries are considered non-performance
→ the rules for late delivery apply
Page 86

Damages and interest
• Damages under Swiss Law are usually actual damages.
• «Positive interest» aims at putting the creditor in a position as if the contract had been
performed properly
example: A vendor needs to make a cover purchase and earns less profit. The damages are the difference
between his actual profit and the profit under the original contract
• «negative interest» aims at putting the creditor in a position as if the contract had never
been performed
example: The buyer terminates the contract. He can claim any expense he has had due to the contract so far but
may not claim loss of profit from this contract.
• Interest on damages is 5 %, compound interest is not possible. Interest starts to run from
the day the damage occured.
• In case of late delivery, interest starts running after giving formal notice to the party whose
performance is overdue.
Page 87

Code of Obligations or CISG? (I)
• The CISG applies to sales contracts and contracts for work and labour as long as the sale
part dominates the contract (Art. 3 CISG)
• It only differentiates between fundamental and non-fundamental breaches of contract (Art.
25 CISG)
• A buyer may generally require performance and ask for substitute goods or repair of
non-conformity (Art. 46 CISG)
• The duty to inspect the goods and notify the seller of a breach is approx. 4 – 6 weeks (Art.
38, 39 CISG)
• Damages can be claimed largely irrespective of seller’s fault.
(Art. 74 CISG)
Page 88

Code of Obligations or CISG?
• Whether to opt out of the CISG or not depends on your client’s specific interests in the
contract:
➢ The Code of Obligations contains short notification periods and strict standards for default
performance. It also allows for rather far-reaching claims for consequential damages.
➢ The CISG has much longer inspection and notification periods. Damages can also largely be
claimed irrspective of fault by the seller.
➢ Other points my come into play (application of a «neutral law», avoidance of the clauses on
contracts for work and labour, etc.)
→ As a rule of thumb, the CISG is more buyer friendly than the Code of Obligations.
→ Opting-out should always be analysed on a case by case basis.
Page 89

Page 90
Michael A. Schifferli
Associate
Wenger Plattner
Goldbach-Center, Seestrasse 39
8700 Küsnacht
Tel.: +41 43 222 38 00
E-Mail: michael.schifferli@wenger-plattner.ch

MAIN
CONFERENCE
Wellcome West Room
Arbitration - Remedies for
Breach of Contract

MAIN
CONFERENCE
Wellcome West Room
14.00 to 15.00
The best Form of ADR?
‘ a debate’

MAIN
CONFERENCE
Wellcome West Room
•Adjudication
•Dispute Board
•Arbitration

MAIN
CONFERENCE
Wellcome West Room
15.00 to 16.00
Expert Witnesses in ADR

John NicolsonLLM FRICS FICE FCIArb MAE C.Arb.
Chartered Arbitrator
Adjudicator
Quantum Expert
WHY DO YOU NEED EXPERTS IN ADR
Nicolson & Co Consulting Ltd

Why do you need Experts in ADR?

What I as an Arbitrator or Adjudicator
need from an Expert in ADR?

JOHN NICOLSON LLM FRCS FICE FCIARB MAE C.ARB
NICOLSON & CO CONSULTING LTD
ELMWOOD
NETHERPLACE
MAUCHLINE KA5 5SU, SCOTLAND UK
T +44(0) 1290 553612
M +44(0) 7793 674012
WWW.NICOLSONANDCO.COM
Thank You

20-23 Woodside Place,
Glasgow G3 7QL.
Website: www.c-senseplanning.com
Email: info@c-senseplanning.com
Telephone: 0141 582 1268
Mobile: 0792 107 9866
2020 Edinburgh Adjudication &
Arbitration Conference
06 March 2020

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Background and Experience:
• Background – Engineer and Project Management (Main Contractors)
• Forensic Delay Analysis – Engaged and experienced in Renewables, Major Infrastructure
and Oil and Gas Commissions
• Expert Witness – National and international appointments including Asia, North Africa and
North America.

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Expert Witness in Adjudication
• The role of an Expert Witness in Adjudication
• Purpose – The Duty of an Expert Witness in Adjudication
• Effectiveness – The Expert’s Opinion
• Any Pitfalls?
• Our experience and future…

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Purpose – Expert Witness in Adjudication
• Engaged or Instructed by Solicitors to provide an independent Expert opinion on subject
matter i.e. EoT and/or cause of delay to completion.
• Overriding Duty is to assist Court or Tribunal. See Expert Witness code of practice (Scotland)
and/or Civil Procedure Rules Part 35 (England).
• Provide independent, objective and unbiased opinion. Not advocate.

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Effectiveness – The Expert’s Opinion
• Expert’s Opinion is generally accepted by Adjudicators in reaching decisions.
• EoT claim can be very complex. Risk is Adjudicator may not have time or worst not
understand the delay analysis. This is sometimes reflected in the decision(s).
• Experience informs us, keep presentation of analysis simple and factual (keep report short
and to point).

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Any Pitfalls?
• Adjudication Timetable – short, intense and does not afford sufficient time for an analysis
especially as a responding party.
• Independent Expert Opinion – often not properly test so quality of delay analysis and
opinion can vary significantly.
• Gamesmanship – rough and readiness of adjudications enables this.

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Our experience and future…
• Consider re-visiting the timetable under the scheme? Extend for complex delay and EoT
disputes?
• Engage suitably qualified and experienced Adjudicators?
• Provide certified training course for Adjudicators?
Your thoughts…

Glasgow G3 7QL.
Telephone: 0141 582 1268
Mobile: 0792 107 9866
Any questions?
• Please get in touch…

FIDIC/ICC Conference in Bogota
2020 Edinburgh Adjudication & Arbitration
Conference
How is an Expert Appointed?
Murray Armes
6 March 2020

HOW IS AN EXPERT APPOINTED?
• Need to have permission of the tribunal to appoint
and rely on experts (CPR 25.4)
• By each party (complex cases)
• Past experience of the expert
• Reputation/recommendation
• Professional body lists
• Commercial lists
• Google search
• By both parties (low value or simple cases)
• Single joint expert
• By agreement
• By the tribunal
• Tribunal appointed assessor (CPR 35.15 and Senior Courts
Act 1981 s70, or County Courts Act 1984 s63)
• Single Joint Expert (CPR 25.12)

THINGS TO CONSIDER
• Do you need an expert or an expert adviser?
• Who will appoint the expert?
• The party
• The lawyer acting on behalf of the party (agency)
• How does this affect legal privilege?
• Conflicts
• Expert to run a conflict check
• How is this done?
• What is a conflict?
• RICS “Conflicts of Interest” 2017
• IBA “Guidelines on Conflicts of Interest” (traffic light system)
2016
• Expert’s own T&Cs
• Who is appointment with? Who pays? Party or lawyer?
• Hourly rate
• Fixed fee
• Fee cannot be dependent on the outcome of the case

THINGS TO CONSIDER
• How to choose the right expert
• Area of expertise
• Professional and academic qualifications
• Cost
• PI insurance cover
• Resources
• Instructions
• An expert cannot give opinion unless it has instructions
• Instructions are not protected by privilege
• Tribunal assessors to assist the tribunal
• Expert advice (initial stages)
• Expert witness (duty to the tribunal, CPR 35)
• Site inspection(s)?
• What output is required?
• Expert meetings to narrow the issues? Timing of these?

THINGS TO CONSIDER
• Expert shopping
• Interview experts to determine what opinion(s) they might
give, select the one that appears to be most favorable to your
case
• Ask several experts to prepare an initial view base on limited
information, choose the one that best suits your client’s case
• Expert shopping is frowned upon by the courts!
• What if you have to change expert?
• Unavailability
• Illness
• Death
• Expertise requires changes
• Conflicts not evident at the outset
• Changing expert requires the permission of the court
• CPR 35.4
• May order disclosure of previous expert’s report

116
2020 Edinburgh Adjudication & Arbitration Conference
Friday 6 March 2020
EXPERTS DUTIES TO THE
TRIBUNAL

117
Your Speakers
Matthew Finn BSc Hons LLM FCIArb MCInstCES FCIOB FRICS MAE MEWI
Managing Director, Ankura, based in London. He is a Fellow of the Royal Institution of
Chartered Surveyors (FRICS), Fellow of the Chartered Institute of Arbitrators (FCIarb),
Fellow of Chartered Institute of Building (FCIOB) and a Member of Chartered Institution of
Civil Engineering (MCInstCES). Matthew is regularly appointed as an expert witness in the
field of quantum (damages) in construction and engineering matters and he has testified
in UK Litigation on several occasions under both traditional cross-examination and under
concurrent evidence, known as ‘hot-tubbing’. He is accredited with the three mainstream
expert witness accreditation bodies (RICS, MEWI and MAE) and he regularly receives
referrals from such panels. Matthew is also featured in Who’s Who Legal in various
chapters in 2018, 2019 and 2020. Matthew is a certified civil and commercial mediator,
construction adjudicator and international and domestic arbitrator sitting on over 20
domestic and international arbitration panels, including the panel of the largest provider
of arbitration services in the UK and the UK Adjudicators Panel. Matthew has worked in
the construction industry in both consulting and large main contracting organisations in
building, civil engineering, nuclear/power, rail, oil and gas, and building services.

Duties to a Tribunal
“….For his part Mr Finn is an expert quantity surveyor with vastly more
experience and authority than Mr [xxxx], but he also has a range of professional
qualifications and a degree of experience which would enable him to form a
view as to quality of work, and in particular defects which would justify setting
off monies on a final account. He has such experience even though he is careful
to say that he does not hold himself out as a technical expert in his report. Mr
Finn was an impressive expert and where his evidence differs from that of Mr
[xxxx] I unhesitatingly prefer that of Mr Finn.”
Extract from judgement on GDL Construction (UK) Limited v. (1) Ashok James
Idasseril Thomas (2) Metropolitan Networks (UK) Limited – Paragraph 63
TCC - Technology and Construction List - Judge Edward Bailey - 2018

➢ Expert should narrow complex issues for the tribunal, consideration needs to
be given as whether expert evidence is to the crux of the matter, and
therefore necessary to resolve the issues in dispute. British Airways Plc v
Spencer [2015]
➢ The expert’s independence and impartiality is vital to the expert’s credibility.
➢ Recent criticisms of expert evidence in the TCC with ICI v Merit, Riva v Fosters
and Energy Solutions v NDA. Experts not complying with CPR Part 35.
➢ Similar levels of scrutiny exist within international arbitrations, with the IBA
Rules of Evidence and CIArb Protocol, however, the privacy gives some
protection from the public of the expert’s testimony.
➢ Could be argued experts have a greater fear of having a ‘career-ending’
judgement in litigation as opposed to when appointed on arbitrations.

➢ Are the duties of an expert conflicted with the duties to their paying
client? No not all! Important for the expert not to advocate even
during the pre-action stage, need to give a candid and frank opinion
from the outset.
➢ In extreme cases, and if the court considers that experts have been
misled, the general powers for contempt of court can be invoked, the
expert can be fined or imprisoned - Jones v Kaney [2011] UKSC 13.
➢ The English courts will demand rigorous adherence to the
requirements and standards to CPR Part 35 – would be the same
standard expected from many tribunals.

121
MATTHEW FINN
Managing Director
+44 (0)20 7398 3861
Matthew.finn@ankura.com
navigant.co
m
CONTACTS

MAIN
CONFERENCE
Wellcome West Room
16.00 to 17.00
Arbitration Issues

Brandon Malone
ICCA 2020 Congress Chair

Edinburgh International
Confference Centre

Golf
 St Andrews
 Gleneagles
 Turnberry
 Loch Lomond
 Royal Dornoch
 Muirfield
 Carnoustie
 Duff House Royal
 Royal Aberdeen
 Balmedie

ICCA 2020
Edinburgh
 Expected to be the largest ever ICCA
Congress
 In excess of 1,200 delegates
 Excellent venues
 Top destinations
 Scottish arbitration

Scottish Arbitration
Scottish legal system
 Based on Roman law, but now similar to the common law in
most respects
 Binding precedent
 Adversarial system
 Limited document discovery
Arbitration (Scotland) Act 2010
 Based on the Arbitration Act 1996 (England and Wales)
 Problems with the English Act have been addressed
 Opt-out confidentiality is the default position
 Anonymity in any related court proceedings

Brandon Malone
brandon@brandonmalone.com
www.arbitration.scot

2020
LONDON
ADJUDICATION
& ARBITRATION
CONFERENCE

2020 LONDON ADJUDICATION & ARBITRATION CONFERENCE
20 AUGUST 2020

1
THE EDINBURGH
ARBITRATION
AND ADJUDICATION
CONFERENCE
MARCH 6, 2020

2
THE EDINBURGH ARBITRATION AND ADJUDICATION CONFERENCE
Ankura’s expert and advisory services are relied on by contractors, owners, architects,
engineers, insurers, investors, lenders, and their counsel to avoid, manage, and mitigate
execution risks throughout the lifecycle of capital projects.
Ankura’s construction experts provide rigorous analysis of complex issues, presented
through experienced testimony before tribunals around the world. Our advisory
professionals apply sophisticated analysis to complex issues relating to capital
programmes, spanning from the planning for capital investment to completion and close-
out of specific projects.
We have acted as quantum experts on hundreds of disputes across the globe – as
adjudicator and mediator – in a number of industries, across a wide variety of asset types.
Quantum contract claims are not
straight forward and inevitably will
include defects claims, claims for
components of the contract price,
termination claims, and/or professional
negligence.
We have been and are influential in
achieving positive settlements in some
of the most substantial global
construction disputes.
Our professionals have an exceptional
track record in providing sound advice
and evidence reports that are essential
in delivering the desired financial
outcome in a dispute or hearing.
Through robust and independent
forensic analysis, presented in a clear
and well guided manner, our
professionals set out all the financial
challenges that have occurred on a
construction claim.

3

4

5
ANKURA ORGANIZATION STRUCTURE
Your Speakers
Iain Aitchison
Architect LLM MArch DipICArb FCIArb FDBF CEDR Accredited Mediator
Iain Aitchison is a Managing Director in the Global Construction Practice in based in London, formerly with
Navigant, acquired by Ankura in 2018. He is registered as an Architect in Germany and the UK, is a Fellow
of CIArb in international arbitration, a Fellow of the Dispute Board Federation (FDBF), a Professional
Member of the Dispute Resolution Board Foundation, and listed on the CIArb Dispute Board Panel. He is a
FIDIC contracts specialist and a DBF accredited Dispute Board Member.
He trained as an Architect in the UK and has experience from projects in the public sector; international
private sector and multi-disciplinary practice. His work in Germany achieved firsts in planning, building and
environment permissions for multinational clients in automotive, chemical and space infrastructure. He has
experience of DAB and DRB including for a power utility in Africa managing multiple DAB’s for the
Employer, and in negotiating settlement of claims with international contractors. He has served on a DB in
the Middle East. He has been instructed as a Delay Expert in ICC Arbitration and in UK Adjudication.
Arbitrator at the Edinburgh University and Munich Viz pre-moot in 2020.

6
ANKURA ORGANIZATION STRUCTURE
Your Speakers
MATTHEW FINN
BSc Hons LLM FCIArb MCInstCES FCIOB FRICS MAE MEWI
Managing Director, Ankura, based in London. He is a Fellow of the Royal Institution of Chartered
Surveyors (FRICS), Fellow of the Chartered Institute of Arbitrators (FCIarb), Fellow of Chartered Institute
of Building (FCIOB) and a Member of Chartered Institution of Civil Engineering (MCInstCES). Matthew is
regularly appointed as an expert witness in the field of quantum (damages) in construction and
engineering matters and he has testified in UK Litigation on several occasions under both traditional
cross-examination and under concurrent evidence, known as ‘hot-tubbing’. He is accredited with the
three mainstream expert witness accreditation bodies (RICS, MEWI and MAE) and he regularly receives
referrals from such panels. Matthew is also featured in Who’s Who Legal in various chapters in 2018,
2019 and 2020. Matthew is a certified civil and commercial mediator, construction adjudicator and
international and domestic arbitrator sitting on over 20 domestic and international arbitration panels,
including the panel of the largest provider of arbitration services in the UK and the UK Adjudicators
Panel. Matthew has worked in the construction industry in both consulting and large main contracting
organisations in building, civil engineering, nuclear/power, rail, oil and gas, and building services.

UKA 2020 Edinburgh Adjudication & Arbitration Conference pack

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