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Thought Leaders

Thought Leaders

Donald Charrett

Donald Charrett

Expert Determination Chambers41 Hinkler RoadGlen Waverley VictoriaAustralia3150

Thought Leader

Thought Leaders - Construction 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Donald Charrett is looked upon with enormous favour by sources for his vast experience in construction and engineering disputes.

Questions & Answers

Dr Charrett practices in construction law as a Barrister, Arbitrator, Mediator, Member of Dispute Boards and Expert Determiner. He is a member of the FIDIC President’s List of Adjudicators. Prior to becoming a lawyer, he worked as a consulting engineer for over 30 years. Dr Charrett has published widely on legal and engineering subjects and presented papers and training at numerous international conferences and seminars. He is the author/joint author/editor of five books on construction law.
How has the market changed since you first started practising?
Construction law is now subject to considerably more prescriptive legislation. Most cost disputes are resolved by statutory adjudication, proportionate liability has increased the number of potential defendants and professionals are subject to mandatory licensing. Systemic and serious building defects are being addressed by legislation to hold professionals and builders financially liable for ten years.
To what extent is arbitration now the preferred method of dispute resolution for construction disputes and why?
Arbitration is generally preferred for larger disputes. But adjudication and expert determination are frequently used for small disputes, or litigation in specialist courts. Arbitration is confidential and the parties have some control over the process, including selection of arbitrators with the appropriate neutrality, expertise and availability. Major projects often involve international parties, and arbitration is well understood and can be conducted in a neutral seat. The New York Convention gives assurance that an arbitral award can be implemented virtually anywhere.
What are the most common sources of construction disputes and how do you think clients can minimise the risks of them occurring?
Construction disputes arise from the parties’ different perceptions of the scope of works under the contract and from risks materialising that adversely impact the quality of the work, or the time and cost to complete it. The parties should invest sufficient time to get the contract right before it is signed – by clear definition of their rights and obligations and the scope of work, and appropriate procedures for timely payment, quality control and claims management. The work should be executed in accordance with the contract. A standing Dispute Board is generally very effective in assisting the parties to maintain good communications and avoid disputes.
To what extent are you seeing convergence towards a common construction law?
The challenges facing construction projects administered through a contract are the same in every country. Contract law is based on the universal principles of freedom of contract and pacta sunt servanda. The words of the contract mostly define the parties’ rights and obligations, irrespective of the governing law. Widely used contracts such as FIDIC and NEC promote international norms of good practice, applicable with few changes in most jurisdictions. Arbitration is almost universally used in international construction contracts, based on a common understanding of an appropriate process. The UNCITRAL Model Law is the basis of arbitration law in many jurisdictions.
What impact will technological innovation have on the construction industry over the next five to 10 years?
BIM has considerable potential to lower the lifecycle costs of a constructed facility by innovations in design, construction and operation that rely on comprehensive, detailed and interconnected data. Cloud based computing will provide design and site staff with new capabilities in computations, data sharing and communication. Construction costs may be lowered by more off-site fabrication and the use of robots and artificial intelligence. Detailed as-built records combined with sophisticated instrumentation will lower the cost of operations and maintenance. Blockchain technology could revolutionise payment procedures and thereby minimise bankruptcies in the supply chain.
To what extent will covid-19 inform parties’ behaviour when entering into construction and engineering contracts in the future?
Covid-19 has drawn attention to the importance of including appropriate contractual adjustment mechanisms for the impact of unforeseen risks. Parties will need to include contractual provisions to adjust for changed ways of working and the possibility of further disruption. Given the extent of disputes likely to arise from the pandemic, parties may pay more attention to the importance of dispute avoidance mechanisms, and expeditious and cost-effective methods of dispute resolution. The recently learned methods of remote working may be implemented to promote more effective communication during project execution and to use technology to create other efficiencies.
Looking back over your career, what has been your proudest achievement?
Chairing the organising committee for the successful Fourth International Construction Law Conference in Melbourne in 2012. The conference had a stellar list of international speakers who travelled long distances to speak on Global Challenges, Shared Solutions. The published book of conference papers is a worthy contribution to greater understanding of the common issues and solutions facing construction lawyers. I am also very pleased that many overseas colleagues have continued to contribute to greater understanding of best international practices of construction law by contributing jurisdiction chapters to the book that I recently edited: The International Application of FIDIC Contracts.
What advice would you give to younger lawyers hoping to one day be in your position?
Understand the construction industry: the technologies, the management of projects and the skills required for design and construction. Experience on site or with a construction company is invaluable in understanding the day to day challenges in completing a project on time, within budget and to the required quality. Knowledge of how the industry functions is equally important for lawyers writing and negotiating contracts as it is for lawyers involved in dispute resolution. Many problems in construction law arise from the intersection of complex technical and legal issues – a thorough understanding of the range of relevant law applied to construction projects is therefore essential.

Global Leader

Construction 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Donald Charrett is looked upon with enormous favour by sources for his vast experience in construction and engineering disputes.

Biography

Dr Charrett is an arbitrator and mediator, practising in technology, engineering and construction disputes. His construction law experience includes arbitration; mediation; expert determination; membership of dispute boards; facilitation of experts’ conferences; Supreme Court Special References; and litigation. He is a fellow of the Chartered Institute of Arbitrators; a member of the FIDIC president’s list of adjudicators; an accredited FIDIC trainer; and a senior fellow at the University of Melbourne. He was named Best Construction Law Practitioner in Australia (2016) by Business Worldwide Magazine; and a Thought Leader in construction (2019) by WWL.

Prior to becoming a lawyer he worked as an engineer for over 30 years, including 12 years as a director of a consulting engineer. Dr Charrett’s engineering experience included computer applications; structural design; managing engineering projects; acting as an expert witness; and management roles in contract negotiation and administration, insurance, international joint ventures and corporate restructuring. From 2012 to 2014 he was non-executive chairman of consulting engineering company AMOG.

Dr Charrett has published widely on legal and engineering subjects, and presented conference papers, workshops and training courses in Australia and internationally. His legal publications include articles on FIDIC contracts; dispute boards; expert evidence; dispute avoidance; contract risk; forensic engineering; contractual lessons from past projects; design and construct contracts; quantum meruit; proportionate liability; and professional indemnity insurance and reinsurance. He is the editor of The International Application of FIDIC Contracts; author of The Application of Contracts in Engineering and Construction Projects; and co-author of The Application of Contracts in Developing Offshore Oil and Gas Projects and Practical Guide to Engineering and Construction Contracts.

National Leader

Australia - Construction 2020

Professional Biography

WWL Ranking: Recommended

WWL says

Donald Charrett gains plaudits for his first-rate practice, which focuses on handling sophisticated engineering and construction disputes.

Biography

Dr Charrett is an arbitrator and mediator, practising in technology, engineering and construction disputes. His construction law experience includes arbitration, mediation, expert determination, membership of dispute boards, facilitation of experts’ conferences, Supreme Court Special References and litigation. He is a fellow of the Chartered Institute of Arbitrators, a member of the FIDIC President’s list of Adjudicators, an accredited FIDIC trainer and a senior fellow at the University of Melbourne. He was named Best Construction Law Practitioner in Australia (2016) by Business Worldwide Magazine and is also included in WWL Thought Leaders ­– Construction (2019 and 2020).

Prior to becoming a lawyer, he worked as an engineer for over 30 years, including 12 years as a director of a consulting engineering firm. Dr Charrett’s engineering experience included computer applications; structural design; managing engineering projects; acting as an expert witness; and management roles in contract negotiation and administration, insurance, international joint ventures, and corporate restructuring. From 2012 to 2014 he was non-executive chairman of consulting engineering company AMOG.

Dr Charrett has published widely on legal and engineering subjects, and presented conference papers, workshops and training courses in Australia and internationally. His legal publications include articles on FIDIC contracts, dispute boards, expert evidence, dispute avoidance, contract risk, forensic engineering, contractual lessons from past projects, design and construct contracts, quantum meruit, proportionate liability, professional indemnity insurance and reinsurance. He is the editor of The International Application of FIDIC Contracts; author of The Application of Contracts in Engineering and Construction Projects; and co-author of The Application of Contracts in Developing Offshore Oil and Gas Projects and Practical Guide to Engineering and Construction Contracts.

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