EXPERT INSIGHT 66 WWW.LAWYER-MONTHLY.COM | JUN 2022 About Anne Connolly Anne Connolly is a chartered quantity surveyor with 25 years’ worth of international construction industry experience. She has been appointed as an independent quantum expert on over 30 occasions and given evidence under cross examination in both arbitration and litigation. Her sector knowledge ranges from commercial building, major infrastructure, mining and power projects (including renewables) to oil and gas projects. About Ankura Ankura is a global consulting firm providing services in construction disputes and advisory, data and technology, forensic accounting, financial investigations and turnaround and restructuring. Anne Connolly Senior Managing Director Ankara Consulting (APAC) Pte Ltd 460 Alexandra Rd, #22-05, mTower 119963 Tel: +65 62769 9050 E: anne.connolly@ankura.com www.ankura.com corporations are also common. In my view this can influence how projects are administered and, therefore, how disputes (anticipated or crystallised) are managed. In the UK and Asia, it is my experience that more consideration is given to a wider range of tried and tested regional and international standard forms requiring fewer bespoke amendments, resulting in more familiar territory for the parties. From an expert’s perspective, the jurisprudence in each continent in relation to expert evidence is another contributing factor. What types of disputes are you seeing as a result of problems arising from the pandemic and do you think we have seen the full impact yet of these issues? In answer to the second point first, I think we are yet to see the full impact the pandemic has had on the construction industry. I am quite surprised by this because from the disputes we have seen it is obviously fertile ground, even in jurisdictions where reasonably robust COVID-related Whilst remote or virtual hearings may be manageable for small to medium sized matters, the preference for large complex disputes remains in-person hearings and, in my view, for good reason. legislation was introduced (in Singapore, for example). The types of disputes we are seeing relate to claims for delay, disruption and acceleration. Interestingly, more recently I have seen arguments against such claims concerning one party’s management of its resources in relation to quarantine requirements and the involvement of unvaccinated labour and personnel. What trends are you currently seeing in construction arbitration? Are these trends here to stay? The obvious trend is virtual hearings or remote/virtual cross-examination of witnesses. One positive from the pandemic is that we are all much more used to operating in virtual or remote circumstances; our environments are set-up to deal with this, or can be easily adjusted to suit. I think this is a trend that is very much here to stay. Since the pandemic I have been involved in hearings that took place remotely and in person. One of those hearings was for a multi-million-dollar dispute on one of the world’s largest chemical complexes, involving several experts from different parts of the world. The Tribunal’s and parties’ preference was for the hearing to be conducted in person. Whilst remote or virtual hearings may be manageable for small to medium sized matters, the preference for large complex disputes remains in-person hearings and, in my view, for good reason. I do not think virtual hearings or evidence will replace in-person hearings and, if I am honest, it would sadden me to think that they could. In my view what this new trend does is modernise the process and provide the parties and the Tribunal flexibility to maximise efficiency and cost effectiveness where possible and appropriate.
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