Dispute Resolution Mechanisms - .GLOBAL

Dispute Resolution Mechanisms: Alternative Dispute Resolution (ADR) Procedures

Presentation to the Royal Institute of Chartered Surveyors - Qatar

John Coghlan

Principal

C&E Legal Solutions

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• Boutique Law Firm

• Construction & Engineering Law only

• Full range of specialists Construction & Engineering legal advice on international projects across the globe

• Over 30 years experience within the construction and engineering industry – subcontractor/lawyer

• Services

1. Contract Documents:

• Draft: Clear and concise contracts which allocate the risk in accordance with a Client’s commercial commitments; and

• Contract Reviews: Identify a contract’s risk profile to assist Clients to understand and manage the risk when either: (1) negotiating a contract,

(2) reviewing and deciding to enter a non-negotiable contract, or (3) administering contracts

2. Project Delivery - Outsourced Project Counsel (OPC):

• Our OPC resource works closely with a Client’s Project Delivery Team to provide specialist practical legal solutions at any stage of a project’s

lifecycle; and

• Assist Clients in avoiding disputes, reaching their objectives and delivering their project – on time and within budget!

3. Dispute Resolution:

• Unfortunately, despite the stakeholders’ best efforts, disputes arise on construction and engineering projects; and

• Advise on litigation and all forms of alternative dispute resolution (ADR) to achieve the best outcome for the Client

• Sectors

• Built Environment’s Key Sectors: Commercial Property, Healthcare, Housing, Leisure, Oil & Gas, Power, Transport and Water 2

• Approach

• Technology: Leading Cloud Based Legal Technology: Case Management Systems / Client Portal

• Modern Day Work Practices: Agile Working

• Global Reach

• Team / Global Network

• Principal: John Coghlan

• C&E Consultants

• Modern day work practices and legal technology provides access to experienced and highly skilled construction and engineering legal

consultants that work on a “project by project” basis; and

• We identify the legal consultants with the right skill set to match the Client’s needs and fit within their team. Ensuring that we provide the

Client with best bespoke practical legal solution to overcome their challenges

• Local Law Firms

• Strong relationships with key local law firms in all major jurisdictions including Qatar.

• Chambers: Construction and Engineering law

• Strong relationship with the leading barristers chambers which focus on construction and engineering law. Identify the counsel/advocate

which best suits the Client’s needs.

• Equates to Genuine Added Value!!!3

Introduction: Structure

• Qatar’s System of Law

• Civil Law

• Court System

• Qatar’s Law

• Contract Formation

• Multi-tier Dispute Resolution Mechanisms

• Alternative Dispute Resolution Procedures: Advantages / Disadvantages

• Amicable Settlement (negotiation)

• Mediation

• Expert Determination

• Arbitration

• Conclusion

• Questions & Answers

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Qatar’s System of Law / Court System

• Qatar

• Operates a Civil Law System of Law

• Qatar: Civil / Commercial Court System

• Lower Civil Court

• Higher Civil Court

• Court of Appeal

• Court of Cassation – highest court in Qatar

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Qatar’s Law: Contract / Multi-tier Dispute Resolution Mechanisms (1)

• Qatar Law Recognises


• Freedom of Contract

• Contract is Law of the Parties

• Article 171(1):

“… the contract is the law of the contracting parties, and it is not permissible to revoke or

amend it, except by agreement of both parties or for reasons prescribed by the law”

• Arbitration

• Arbitration Act: “Law No. 2 of 2017 Promulgating the Civil and Commercial Arbitration Law”

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Qatar’s Law: Contract / Multi-tier Dispute Resolution Mechanisms (2)

• Means

• Parties may choose Arbitration as a private alternative dispute resolution (ADR) procedure to litigation/courts

• Resolve construction and engineering Claims/Disputes

• Arbitration is a “creature of contract”

• Parties are free to include preconditions to commencing arbitration

• Multi-tiered ADR Procedure - Example:



• Arbitration – final tier

• Additional ADR: Mediation - used in Qatar. Not discussing Adjudication as no Statutory Right in Qatar

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ADR: Amicable Settlement (negotiation)

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• Generally C&E contracts in Qatar

“…Parties shall attempt to settle the Dispute amicably and in good faith for 28 days following a party sending a Notice of

Dispute.

Should the Parties fail to reach an amicable settlement to their Dispute in accordance with the above they shall comply

Clause [X – next tier]

Advantage Disadvantage

Potential to resolve the Dispute Not binding

ADR: Mediation interchangeable with Conciliation (1)

• Voluntary ADR Procedure

• Parties discuss their issues and attempt to resolve the same with the assistant of a third party =

Mediator

• Ad Hoc / Institutional Rules

• International Chamber of Commerce (ICC) Mediation Rules

• Qatar International Centre for Conciliation and Arbitration (QICCA)

• Conduct: Parties have significant freedom to decide on approach

• Generally

• Prior to start parties exchange summaries of their position and material documents

• Start the Parties/Mediator agree the approach/rules to attempt to reach a settlement

• Recent News: 7 August 2019

• United Nations Convention on International Settlement Agreements Resulting from Mediation

• AKA Singapore Mediation Convention 2019 (SMC 2019)

• Intended to facilitate the enforcement of Settlement Agreements from Mediation

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ADR: Mediation interchangeable with Conciliation (2)

Advantages Disadvantages

Confidential and Parties have control Purely consensual – not required to take part as a

matter of law

Cheap and quick process – complete in a

day

Parties need to have realistic expectations – if

relationship broken down/angry unlikely to succeed

Parities nominate and agree Mediator Not suitable where the remedy requires the Court’s

assistance – no direct enforcement

Flexible: Scope for non monetary remedies

e.g. performance – to complete an obligation

or to cease from conduct which breaches an

obligation

However – be mindful of the Singapore Mediation

Convention 2019

Negotiations on WP/Confidential basis SMC 2019 - Direct enforcement, subject to SMC’s

terms, of cross border settlement agreements from

Mediation

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ADR: Expert Determination (1)

• ADR Procedure

• Parties to a contract jointly instruct a third party expert to determine an issue between them

• Generally

• In Contract / Ad Hoc

• Institutional Rules

• ICC’s Expert Rules

• London Court of International Arbitration (LCIA) Expert Rules

• Conduct: Parties free to decide on approach

• Generally

• Choose Expert – depends on nature of the Dispute e.g. cracks in concrete

• Expert’s Mission

• Concludes with Expert’s Report

• Used in construction and engineering Disputes

• Technical Issues

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ADR: Expert Determination (2)


Flexible – Parties agree whether final

and binding or not.

Expert generally not required to follow due

process e.g. unlike Arbitration no right to request

disclosure, witness evidence etc etc

Generally quicker and cheaper than

litigation and Arbitration

Confusion as to the Expert’s status if the contract

is not clear e.g. “…the Expert will act as an

Arbitrator…”

Good for technical disputes Risk of dispute: Is the Expert an “Independent

Expert” completing an Expert Determination or an

“Arbitrator”?

Less likely to damage commercial

relationship

Generally not supported by Statute

Confidential If binding - limited grounds for appeal – could be

stuck with an incorrect Determination

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ADR: Arbitration (1)

• ADR Procedure

• C&E Contract includes Arbitration Agreement

• Parties agree to submit their Disputes to Arbitration

• In essence Parties’ contract out of the state’s court structure – private Arbitration “creature of contract”

• Sole Arbitrator or Three Arbitrators

• Ad Hoc / Institutional Rules

• ICC’s Rules of Arbitration 2017

• LCIA Arbitration Rules 2014

• Qatar International Centre for Conciliation and Arbitration (QICCA)

• Conduct

• Set out in the Rules

• Similar to litigation / pleadings / submissions etc

• Court’s Assistance – Qatar Arbitration Act 2017

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ADR: Arbitration (2)


Confidential and private – no bad publicity Time consuming – especially if managing the

diaries of three busy Arbitrators

Neutral – parties agree the “governing law”

and “seat” for the arbitration. Very Helpful if

fear of bias in the local court system

Cost – pay for Tribunal / Venue etc

Choose Rules of evidence – International

Bar Association (IBA Rules 2010) - specific

rules on disclosure

May require Court’s assistance – adds to

time and costs

Supported by Qatar Arbitration Act 2017 May face enforcement challenges in a

foreign jurisdiction – adds to time and costs

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Conclusion

• In conclusion

• Qatar’s Civil Law System of Law / Courts

• Qatar’s Law


• Multi-tier Dispute Resolution Mechanisms

• Advantages / Disadvantages of different ADR


• Mediation


• Arbitration

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Thank You: Any Questions?

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Contact

John Coghlan

Principal

E: [email protected]

Qatar: +974-5559-3797

UK: +44 (0)7938-948131

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