I will be contributing to the DRBF Connections Conference 2020 this week, speaking with John Papworth on the topic of Dispute Avoidance: Leading the horse to water when you don’t have the reins.
This is a virtual event. The DBRF says:
DRBF Connections Conference 2020 is the only conference dedicated entirely to the Dispute Board process. The event is an online gathering place for DB users, practitioners, and enthusiasts to share best practices, learn from industry leaders, sharpen their skills, and connect with colleagues around the world. Resolve to make a difference in effective dispute avoidance and resolution on projects.
The event website provides the details, including the star-studded list of presenters. It starts at 1400 UTC (Greenwich Mean Time in the old money) on 28th October; my session is at 14:15 UTC on 29th October. The price depends on who you are.
Which is the very small hours of Friday morning for me at Myponga Beach! Happily, whilst the sessions are presented in real time, they have all been pre-recorded. So I think what I have to do is to Continue reading
This is the paper I gave on Friday in Adelaide for Legalwise Seminars:
Approach to Dispute Resolution Clauses.
I do find it rather odd that anyone, these days, would think that litigation should be the right way to resolve construction disputes, with Continue reading
Those who visit these pages from time to time might have noticed that it has been a little while since my last post, and perhaps guess that this is a symptom of idleness.
In fact, the contrary is true. Since getting back from Europe and the United States, I have had far too little time for sidelines. In moving to the beautiful Myponga Beach, I had in mind that these days I go to the airport rather more often than I go to the law courts in Adelaide, and so it is been continuing to prove: I have been in Sydney on dispute avoidance board business and in Darwin on adjudication determination challenge business.
I did rather think that I might have been able to set a bit of precedent in the Northern Territory courts, in terms of bringing the Northern Territory into line with the rest of the country, and in particular New South Wales, on the topic of what introductory relief should be granted after an adjudication challenge has been launched, but before it can be heard by the court. In the Northern Territory, the typical Continue reading
I have just got back to base after an interesting and worthwhile Dispute Review Board Foundation International conference in Santiago, Chile. A topic of particular interest was the use of Dispute Boards in PPP projects.
Most readers of this post will know what a PPP project is, but for those who don’t, I have included a rough guide below. Likewise for those who might like a quick guide to dispute boards. But what has this got to do with game theory, and in particular, prisoner’s dilemma?
I was first introduced to prisoner’s dilemma by the revised version of Richard Dawkins The Selfish Gene. It is all to do with iteration, and why, when only the fittest survive, so many organisms, including homo sapiens, will often do selfless things for the benefit of their own kind.
Roughly, it goes like this. A couple of likely lads are engaged in a Continue reading
Just back from a brief break on Kangaroo Island.
Tomorrow Patrick O’Sullivan and I will be talking at LEADR/IAMA ‘Kon gres tomorrow at the Playford in Adelaide.
This is what the blurb has to say about it:
Patrick O’Sullivan QC & Robert Fenwick Elliott
1.30 in Adelaide 2
Internationally, dispute boards have for some time had a major role in avoiding and resolving disputes, particularly in the context of major projects. What impact of these boards have in Australia, and what is the future likely to hold for them?
The use of boards has been increasing in Australia at an exponential rate, particularly Continue reading
I have been hooked up to contribute to the LEADR/IAMA ‘kon gres in Adelaide on 15 September this year, to talk about review boards.
Review boards are plainly important. In the old days, the alternatives to litigating construction contracts in the courts (plainly, a hugely inefficient process) were arbitration, with a sprinkling of mediation. That has all changed now. If we had to describe the alternatives these days, a somewhat crude analysis would be that they are adjudication with (in the case of major projects) a sprinkling of review boards.
There is quite a lot to say about review boards; in the case of major projects, they provide the opportunity for a much more intelligent and efficient way of both preventing disputes, and if disputes are inevitable, of resolving them. For this particular session, I will be sharing the task of talking about them with Patrick O’Sullivan. One of my topics is to talk about enforcement, and so I will have to say something about the decision in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation  SGCA 30.
Rather than shoot my own fox for the excitement on the day for my analysis of this judgment, which runs to Continue reading
I was asked the other day for permission to reprint a rather old article of mine on delay analysis, and I took the opportunity to update it, see Delay in Construction Projects: Where Science Meets the Law.
It also provided me with the opportunity to include a reference to Heisenberg. Before I studied law (as a postgraduate, the College of Law in the UK) I had obtained my degree in English and American literature, but originally, had gone to university with a view of taking my degree in theoretic physics. I have always thought that theoretic physics is a rather underestimated discipline for lawyers and among the concepts of quantum mechanics that has some application to law is Heisenberg’s uncertainty principle. In a nutshell, the true Continue reading
It was both a privilege and a pleasure last month to be formally appointed to chair the Dispute Avoidance Board for the Sydney Light Rail project, which will run from Circular Quay in Sydney to connect with Randwick and Kingsford. It is a substantial PPP project worth a little more than $2 billion, and I have been hard at work recently getting my head around the contract documents.
The track record for these review boards in Australia is brilliant – now 60 projects without a single one of them having Continue reading
I was asked by Legalwise Seminars if I could present the paper for them at their Contract Law Masterclass at 7.30 tomorrow morning. That was rather too early for me; I’m doing it instead at the slightly later time of 8.50 at the Stamford Plaza in Adelaide.
My paper has the rather odd title Rap Your Way to the New Beat: A New Approach to Contract Drafting. It has nothing to do with rap music at all, of course. Instead, it is an acrostic for review boards, adjudication and preaction protocol.
The general drift of my paper is that it is dumb for those who draft contracts to ignore any of these things. Review boards, or Dispute Avoidance Boards as they are often now known in Australia, are a hugely successful way of managing out the risk of disputes on Continue reading
Just back from the Society of Construction Law working weekend in Victor Harbor.
The group mug shot looks strangely old fashioned – as if it was taken in the 1970’s. It was taken by Matthew Bell, who said he might in due course photoshop himself into the photo somehow or the other. I wonder if he will give himself flared trousers and an Afghan coat?
Notwithstanding this impression, the weekend was excellent. This format – of a relatively small group with time to talk of important stuff in our business – is a welcome change from the big “set piece” events.
My own principal contribution was Continue reading