Construction & Engineering

The nature of the construction sector – large value and complex transactions, multiple interfaces and parties and an often long contract period – means disputes are commonplace. Our Construction & Engineering team are ideally placed to help you resolve the many disputes that may occur – whether through dispute resolution or, where necessary, litigation.

Our team has the expertise and experience in all methods of construction dispute resolution including:

• Litigation

• Arbitration – both international and domestic

• Adjudication

• Dispute review and adjudication boards

• Bespoke alternative dispute resolution mid-contract mechanisms and tiered escalation provisions

• Expert determination and early evaluations (binding and non-binding)

We have also developed tailored dispute resolution procedures designed to help you manage whatever difficult situations arise.

Our teams capabilities

Our Dispute Resolution Team

Construction disputes are often large and complex. As a result, you need a legal team with sufficient practical knowledge to understand how your business works and the objectives you want to achieve. Our team has both in-depth knowledge of the construction industry and the practical experience of working in-house. This has led to a leading dispute resolution practice, with lawyers holding expertise that covers the spectrum of the construction sector.

In addition, our team is genuinely global – with coverage throughout the UK, Europe, the US, Asia Pacific and the Middle East. This means our team is ideally placed to provide our dispute resolution services wherever your issue arises – whether that is locally, nationally or across borders.

Our Approach

Lawyers who understand why disputes arise and how best to manage and resolve them are better equipped to draft sound agreements and explain the contractual process across the negotiating table. Unlike the majority of our competitors, we do not separate contentious and non-contentious teams but, instead, give our lawyers all-round experience of all the issues they may face. This ensures our lawyers have wider and more in-depth experience and are aware of all the resolution avenues open to you.

Our expertise in contentious and non-contentious arenas means that you will benefit from a continuity of service. The team that reviews the contracts and, where necessary, engages in discussions about changes to current working arrangements will also be the team that works with you in managing any disputes. This provides an unrivaled level of continuity across the areas on which you may require legal advice, leading to a strong working relationship and ensuring our team always fully understands your objectives and the strategy designed to meet those objectives.

Alternative Dispute Resolution

Should problems arise, we help clients understand the extent of their duties and obligations under contracts they have entered into – both when deals are done and when things go pear-shaped. We assist in the management of disputes and prepare strategies for dealing with claims. You can be assured that we can support you through any method of dispute resolution procedure – litigation, arbitration (including international arbitration), adjudication, expert determination, mediation and other forms of alternative dispute resolution.

International Arbitration

When clients need specialist construction and engineering lawyers, what is unique about our Construction & Engineering team is that we can not only advise you on the issues you face in your own jurisdiction, but we can also advise on complex international transactions and dispute resolution. Clients, we find, feel more confident when our international lawyers have support all over the world from people who understand the local environments, helping us tailor solutions to meet your needs in the local legal context, as well as advise on cross-border strategies.

Recent experience

• Advising the EPC contractor in relation to a contract for the construction of a US$9 billion pearl gas to liquid plant in Ras Lafan, Qatar.

• Acting for a UK pension fund in relation to a dispute involving defective design and workmanship caused by the original construction team for one of the portfolio assets, a £75 million mixed use retail, residential and leisure complex in the heart of Birmingham.

• Acting for a local authority, in relation to claims by the contractor for additional compensation in relation to the construction of a £60 million sea wall defence contract by way of NEC Option.

• Acting in international construction arbitration between contractor and buyer of two jack up drilling units, the largest and most advanced ever built. Contract disputed claims US$500 million plus.

• Representing in an LMAA construction arbitration between an Asia and Middle East ship owner and French supplier over supply of allegedly defective liquefaction plant on board 3 vessels. Disputes involving US$20 million.

• Advising Veolia Water Solutions under an NEC option C, target cost contract in relation to a contract for the construction of a waste treatment facility. Claims in relation to defective design and/or workmanship. Matter settled by way of facilitative mediation.

• Resolving multimillion dollar cost overrun claims against a team of design and engineering firms concerning the construction of a National Football League stadium.

• Representing the main contractor in arbitration concerning the design and build of a sports stadium. The claim was won after a four and a half month hearing.

• Representing a local authority in its multimillion dollar arbitration concerning the negligent design of a road bridge.

• Conducting two ICC Construction arbitrations acting for major communications company relating to engineering failures on the London Underground pursuant to two PFI contracts.

• Advising a major food process plant owner, one of the largest in Europe, concerning defects in the office complex and production facility under the NEC form of contract.

• Acting for a social housing association regarding claims by the contractor under a JCT form of agreement due to delays and additional costs brought about by the alleged default of the employer’s design team.

• Acting for a major contractor in relation to the design and construction of the superstructure of a shopping complex. Issues as to quality of the design/workmanship regarding concrete works and steelwork. Cross claims for additional costs by way of variations, delay and disruption.

Having advised clients in all sectors, including retail, leisure, industrial, offices, residential property, education, airports and transport hubs and sports stadiums, we understand the demands of quality and the unique requirements of each of these distinct markets. Because we deal with the issues raised in these environments on a daily basis, we have developed streamlined products and processes to help move both straightforward and more complicated transactions forward quickly and economically.

We understand that no two development projects are ever the same, even if the parties to the project are identical. As a result, we identify and appreciate the individual aspects of a project at an early stage.

We represent developers, builders, funders, investors, landlords and tenants in their development projects, from initial acquisition, through to the planning and approval process, obtaining funding, and then on to construction, completion and post-completion matters. This understanding and experience of having acted for all the key stakeholders in development projects provides us with a unique insight into the key drivers of all parties.

Regardless of who we act for in this process, we are able to utilize our experience in order to understand the relative positions and the commercial perspectives of all those involved.

The benefit is that we are able to work with you in an efficient manner to navigate the legal and commercial complexities of your specific project and drive economies in order to achieve appreciable value.

Our teams capabilities

We regularly work with other professionals, including engineers, architects and surveyors, to ensure a fully inclusive, coordinated process under which issues are resolved often before they arise.

We provide construction advice to streamline your development issues.

Managing the construction process to meet the demands of the project requires a contractual structure that seeks to achieve your objectives. We understand that bringing new quality developments to market quickly is your priority to secure reward and a return on the investment.

We advise on the contractual relationships between you and all the other parties involved to make sure you are fully protected and that your objectives are achieved. Typically, our services for real estate development transactions include drafting, negotiation, finalization and completion of:

• Development agreements and agreements for lease

• Building contracts – both bespoke and schedules of amendments to all the main standard industry forms

• Appointments of your designers and professional team of consultants

• Collateral warranties and third-party rights – to provide contractual rights to interested parties, whether that is the client, funders, tenants or local authorities

• Bonds and guarantees – to support the project and act as additional security for the development

• Other documentation – such as pre-construction services agreements, letters of intent, contractual licenses, step in arrangements, funding agreements and escrow arrangements, etc.

Procurement

Guided by your objectives, we will craft the contractual matrix that will best achieve them. We can do this because we have in-depth knowledge of, and experience in, drafting contracts and advising our clients on the full range of agreements in all sectors, using not only JCT, NEC, ICE, ACE, RIBA, CIC, IChemE, IMech/IEE (Model Forms) and FIDIC forms, but also PFI/PPP, Alliancing and other public sector models as well.

We advise government bodies and supply chain on the construction aspects of public procurement law and add value to competition procedures by advising on tender processes and preconstruction arrangements.

Project Financing

Financing long-term infrastructure, industrial projects and public services can be a particularly complex area for many businesses. Due to the way revenues are generated for these projects, you need an experienced team to deliver the correct service and a return for the investor.

We regularly deal with financing matters related to project structuring and development, financing and other contract issues across all construction sectors. Our extensive experience includes bringing various, wide-ranging projects to completion. We do not just give you legal advice. We give you commercial and strategic advice and tailor our service to suit your individual project and financing agreements.

Recent experience

• Birmingham City Council – Advising in relation to the more than £300 million redevelopment of New Street Station.

• British Land Plc – Advising in relation to the demolition and complete redevelopment of 103 Colmore Row, Birmingham (Natwest Tower).

• Centro – Advising in relation to the new transport interchange development (bus, rail and light rail interchange) in the City of Wolverhampton.

• ITV – Acting in relation to their £50 million construction project of new facilities and the Coronation Street set in Salford, Manchester.

• Olympic Delivery Authority – Advising regarding London 2012, including the aquatic center and the surrounding infrastructure (including bridges and highways).

• Blackpool Borough Council – Advising in relation to track infrastructure and a new depot facility in relation to the £120 million new light rail scheme.

• Muse Developments – Advising in relation to the £100 million regeneration of Reading town center under a joint venture agreement with the council.

• Blackpool Borough Council – Advising the council and its regeneration company, ReBlackpool, in relation to two £20 million seafront regeneration schemes as part of the wider headland redevelopment.

• Shrewsbury Sixth Form College and Shrewsbury College of Arts and Technology – Acting on its more than £70 million co-location development in Shrewsbury.

• Syndicate of banks – Advising in relation to a £100 million development neighboring the M25, including tunneling works beneath the motorway.

• Lloyds TSB Bank – Acting in relation to the £400 million development of the largest data center in Europe.

• HSBC Bank – Acting in connection with a £60 million development in Coventry, including a number of hotels, a casino, leisure, residential and car parking.

• Major property developer – Advising on the redevelopment of the grade 1 listed St Pancras Chambers, Kings Cross, London.

• Major property financier – Advising in relation to numerous property developments throughout the UK.

• Major logistics company – Representing in relation to a number of new build warehouse and office developments.

Real estate finance and development projects can be complicated and risky business transactions for a lender at any stage of the development. Our team of experienced professionals can protect your interests throughout the life cycle of the project to ensure you remain fully protected: from conception to completion, and into the warranty period.

Commercial

From commercial office and retail accommodation, to inner-city mixed-use schemes and housing projects, we have the experience to understand your objectives and challenges. We can fully support you on such projects of any size. We advise major investors and funders on construction risks inherent in property and portfolio acquisitions.

Pharmaceutical Production Facilities

As one of the leading legal practices advising the pharmaceutical industry, we have extensive experience in advising on all aspects of procurement, financing and construction of major pharmaceutical process plants – both in the UK and internationally.

The design and construction of pharmaceutical facilities has never been a simple task. Changing technologies, a stringent regulatory environment and the need for exhaustive product testing add dimensions to projects not always found in those of other industries. International projects must overcome differences in language, politics, climate and time zones and uncertainties associated with ocean freight and material and labor availabilities — not to mention the obvious cultural differences.

Our lawyers have worked on a huge number of high-value projects throughout the world and are used to developing innovative solutions to enhance project deliverability. We have been trusted with the contracts for some of the largest and most ambitious projects in the world.

Procurement – Think Locally, Act Globally

One of the key principles for procuring a pharmaceutical project is to align the objectives of all participants and for participants to articulate the business purpose and functionality of the facility and give consideration to budgeted cost, time schedules and the quality criteria so that the project team’s leadership has a clear picture of the road ahead and the objectives. All of the key stakeholders in the project owner’s company must participate and have internal alignment sessions that include facility flexibility, expandability, code compliance and amenities.

For an international project, the alignment of the parties requires a broad analysis of issues and challenges unique to the selected site. From the conceptual design on, all significant players in facility design, procurement, construction and qualification must keep in mind unique aspects of the chosen location. Management (in practice and contractually) of the following issues during the construction process will assist in leading to a successful project:

• Safety – Procedures should be developed to fit local culture and customs, but the ultimate goal is to establish a “project culture” that ensures worker safety and environmental protection.

• Transfer of design intent – Initial planning for the project should consider the means by which the design intent will be transferred to the site and include a methodology for ensuring that the construction site staff has the benefit of the project technical approach established during the conceptual phase.

• Contractor capability – Knowledge of the local business environment and the capability of area contractors are critical for execution in an international locale.

• Local customs – There must be awareness of the social, legal and attitudinal differences between the company headquarters and the site location. Language and religious customs are the first differences that surface and must be accommodated.

• Ethics and legal complications – Bribery or under-the-table payments are still common in some areas of the world. Principled managers must avoid even the appearance of wrongdoing to protect the fiduciary interests of their companies and the owner and in accordance with the company’s national laws.

• Productivity assessment – The only means to ensure that the project is tracking to its budget and schedule targets is to constantly measure and track the results of construction activities.

Our Experience

We understand the interface between cost, risk and delivery. The size and international scope of our practice, coupled with our industry knowledge, puts us at the forefront of legal advisers in the sector and our approach gives our clients access to teams of lawyers who combine market knowledge with an international perspective.

Our team has individuals experienced in advising on procurement, contract choice, drafting and negotiation, project management and dispute avoidance of pharmaceutical projects both in the UK and overseas. Our expertise means we can draft and negotiate contracts and advise throughout the life cycle of the plant, from initial project conception, through building, extensions and modifications to mothballing, demolition and remediation. We also recognize that sometimes disputes are unavoidable. Whether claimant or respondent, we can advise you on the many different forms of dispute resolution used in the industry.

Development Finance

We understand that no two development projects are the same, even if the parties to the project have a successful track record of similar schemes. With significant experience of acting for both lenders and borrowers over several decades, we understand and identify the key commercial drivers that are relevant to all parties. We utilize this experience in order to evaluate the relative positions and commercial perspectives of all parties involved in the transaction and move quickly to assess your individual objectives. Our only goal is to adopt an approach that will protect your position and achieve your objectives; we do not raise irrelevant points and we will not unnecessarily delay your transaction. We work with you and the other parties involved in an efficient manner to navigate the legal and commercial complexities of your projects and to drive the transaction forward.

Our Experience

We advise on the full range of construction documentation, including building contracts, professional appointments, collateral warranties, parent company guarantees, performance bonds and priority agreements relating to step-in. We also advise on the construction aspects of the facility agreement. We work closely with other professionals (particularly your monitoring surveyor) to ensure that there is a coordinated approach to completing the transaction.

We have experience of the restructuring of deals, perhaps following an event of insolvency, and advise on the appropriate recourse to be made against defaulting parties, should this eventuality arise. We have the unique capability and experience of advising clients in the disputes arena (whether litigation or all forms of alternative dispute resolution) and, as such, we have an insight in to both the commercial drivers regarding the structuring of the transactions and the potential mechanisms for recourse.

Our teams capabilities

• Syndicate of major banks – Assisting with the construction and finance advice in relation to a £180 million loan to a venture capital company in relation to the purchase of eight motorway service stations (some new and recently constructed) from a company in administration.

• Bank – Acting in connection with a £60 million development in Coventry, including a number of hotels, a casino, leisure and residential developments, and car parking.

• Syndicate of banks – Advising on a £60 million motorway service area development neighboring the M25, including tunneling works beneath the motorway. Contract based on New Engineering Contract (NEC) Option A and included negotiating related agreements with the Highways Agency.

• Funders – Advising on the £2 billion redevelopment of London Kings Cross Station by Argent.

• Bank – Acting in the financing of construction costs for a £45 million residential development in Stratford, London, to include a large number of affordable units and including negotiations with the Residential Social Landlord, the contractor and the construction team.

• Bank – Acting in relation to a total lend of £30 million across four schemes for residential care and treatment facilities in the southeast of England to create in excess of 300 beds.

• Bank – Acting in relation to its borrower’s acquisition of a house builder out of insolvency and then subsequently financing the development of 450 residential units in Cambridge.

• Equity fund – Acting in relation to a number of separate construction schemes in Romania, Bulgaria, Hungary and Croatia, having a collective value of €350 million and comprising mixed-use schemes, commercial, retail and residential.

• Equity fund – Acting in relation to a £300 million acquisition, redevelopment and subsequent disposal of a skyscraper in London.

• Bank – Acting in relation to a £100 million loan to a developer across a portfolio of 10 sites around England and Scotland to redevelop commercial and retail units.

• Bank – Acting in relation to a £18 million facility for the construction of a 150-unit residential scheme in Manchester, together with the subsequent enforcement of security in circumstances where the contractor, the borrower and then (in turn) the end user all suffered consecutive events of insolvency. Dealing with step-in, completion of the works and subsequent disposal to a third party.

• Bank – Advising on its borrower’s acquisition of the former Peugeot works in Coventry and provision of further development financing for the construction of 340 residential units.

• Bank – Acting in relation to the redevelopment of a site at St James, Corby, for use as a retail site.

• Bank – Acting in relation to a hotel redevelopment in Liverpool under the Business Premises Renovation Allowance scheme.

• Bank – Acting in relation to the provision of £5 million for the redevelopment of a multiple occupancy site in Mayfair, London, to create a private members club. The work included drafting and negotiating complicated direct arrangements and step-in deeds between a number of parties having different interests in the land and completed development.

We also advise banks on the procurement of their own capital projects. Examples of this include:

• Bank – Advising on the construction of a circa £200 million data center (one of the largest in Europe).

• Bank – Advising on revising and updating its framework agreements for the appointment of contractors and a separate framework for the appointment of professional consultants for use in connection with new build and upgrade works to the bank’s property estate.

• Bank – Acting in respect of a fit out contract for its London office.

Recent experience

• Major contractor – Advising on its contract under PPC2000 for the construction of a major drug manufacturing facility in the north of England for a hospital trust.

• Major pharmaceutical company employer – Advising on a turnkey contract for the production of a pharmaceutical plant using an amended IChemE form of contract.

• UK-headquartered pharmaceutical company – Advising on its drug manufacturing project facility in the northwest of England.

• Employer – Advising on a turnkey contract for the production of a pharmaceutical plant using an amended IChemE form of contract.

• Pharmaceutical company – Drafting and negotiating a contract to redevelop an existing facility for a new wound dressing manufacturing process plant.

• Advising on disputes at a pharmaceutical plant under a NEC3 contract in relation to claims arising from compensation events, changes to the works information and the completion date.