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 Case Study - Negligence and Damages
Case Study - International Construction Projects
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Case Study - Negligence and Damages
1430 - 1730 Tuesday 26 October
What form of dispute resolution for Tom, Dick and Harry? Litigation, mediation or arbitration?
Joint session with Arbitration and ADR and Sports and Gaming.
Co-Chairs:
Alberto Perez Cedillo London, UK
Christopher Gardner QC London, UK
Speakers will consider the pros and cons of each against the following factual matrix: during the last minute of the National Rugby League final early last year, Tom suffered a fractured shoulder when Dick so drove the scrum as to cause it to collapse. A fight broke out and Tom knocked Dick unconscious. Harry, the referee, awarded a penalty against Tom's team, which was decisive to the result. After the match the manager of Tom's team publicly accused Harry of failure properly to control the match and bias. Tom was unable to play in the World Cup and has brought an action against Dick, who owns a chain of sports equipment shops, claiming $1 million in loss of endorsement income. He has subpoenaed players who took part in the World Cup to prove his loss. Dick denies that Tom would have been chosen for his National squad, and has subpoenaed some of the selectors. He has counterclaimed $1 million loss to his business due to his reduced input caused by his head injury. Harry claims against Tom's club that, as a result of the false accusations made against him, he was not selected as a referee at the World Cup and has lost $50000. Tom and Dick are also bringing alternative claims against the Rugby Football Union and International Rugby Union on the basis that the Rules of Rugby permitted Dick's form of play, which was inherently dangerous. All of the actions, which are likely to attract much publicity, are due to be heard this December. There is therefore only time for one form of ADR to be attempted, if at all.
Case Study - International Construction Projects
0930 - 1230 Thursday 28 October
Insolvency on site
Joint session with Insolvency and Creditors' Rights
Co-Chairs:
Stephen Butler San Francisco, California, USA
Arent van Wassenaer Amsterdam, the Netherlands
A case study and workshop on the ramifications of insolvency of project participants in large infrastructure projects will be examined.
Case study: A private-financed toll-road in A with B as concessionaire. The project company B has awarded the construction works to the general contractor C.
After the commencement of the works and before completion C encounters severe financial difficulties one of its creditors lodges bankruptcy proceedings against it. B reacts by terminating the contract and instructing D to carry out the remainder of the works for a considerable higher price. In addition it calls a 50 Mio performance bond of E-Bank which does not honour the call and in turn raises all sort of defences.
As B now lacks of the necessary cash-flow to fund the remainder of the works and banks and sponsors cannot agree on a salvation package at short notice it has to file for insolvency proceedings as well.
The banks decide to exercise step-in rights agreed in the financing documents and to reassure the government in the host country which has been discussing an early termination of the concession agreement. The government resists and says that it would only agree to a replacement of B if all liquidated damages for delayed completion would be paid.
The following issues will also be discussed:
- Under which circumstances can construction contracts be terminated if the contractor becomes insolvent?
- What are the Employer's entitlements in the case of a termination for insolvency?
- How can the employer successfully collect the monies under the performance bond? What are the remaining defences available to the bank / credit insurance company?
- What are the rights of the Contractor if the Employer becomes insolvent?
- Step-in rights: do they work?
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