Dr Charrett practises in construction law as a barrister, arbitrator, mediator and member of dispute boards. He is a member of the FIDIC president’s list of adjudicators. Prior to becoming a lawyer, he worked as an engineer for over 30 years. Dr Charrett has published widely on legal and engineering subjects and presented papers and training at numerous conferences. He is the author/co-author/editor of five books on construction law.
What attracted you to a career in construction dispute resolution?
My experience as an engineer highlighted that construction disputes often involved the intersection of complex technical and legal issues. I thought that I would be able to use my technical expertise in conjunction with my legal training to assist clients to resolve disputes efficiently and effectively.
How does your previous experience working as an engineer influence your approach when advising on construction disputes?
The practice of engineering involves a rational analysis of the requirements of the project, assembling the necessary data, and applying the appropriate analytical tools to determine the most cost-effective solution in a logical way. The same approach applies to construction disputes: it is necessary to understand the client’s needs, assemble the available lay evidence, procure expert evidence, and apply the appropriate legal tools in the most effective way. Engineering and the resolution of construction disputes are both left-brained activities: a structured approach is essential to determine the key issues, and to avoid spending time on second-order issues that will not be determinative of the outcome.
What are the implications of inappropriate risk allocation in construction projects? What steps could be taken to improve these allocations?
Inappropriate risk allocation means that a contracting party is liable for the consequences of risks over which it has no control or ability to manage. At the tendering stage of a project this can result in higher bid prices, time-consuming and expensive contract negotiations, or competent tenderers being unwilling to bid. During construction, inappropriate risk allocation can result in substantial unforeseen and unbudgeted time and cost impacts, and in extreme cases insolvency and termination of the contractor. Inevitably, this leads to claims and disputes to the detriment of the collaborative working relationships that are the hallmark of a successful project.
Standard form contracts are based on balanced risk allocation but are frequently heavily amended to transfer much of the risk to the contractor. Avoiding such amendments is in the best interests of employers – it will lead to lower contract prices and significantly fewer disputes, advantages recognised by international aid organisations such as the Japan International Corporation Agency and the multilateral development banks. This requires employers to understand that it is inappropriate to pass risks on to the contractor that it cannot control or manage.
How has LNG plant building in Australia affected the construction market more generally?
In the years from 2012, seven LNG projects were constructed in Australia, all of which are now exporting gas. During this period, the available engineering and construction resources in Western Australia and Queensland were stretched to the limit. This resulted in significantly increased costs and resource shortages elsewhere in Australia. Since the completion of LNG project construction, the economies of Western Australia and Queensland have suffered as housing and, more recently, infrastructure construction in the eastern states have picked up. The substantial government commitments to infrastructure construction in New South Wales and Victoria are now creating shortages in engineering and construction resources that may limit the expansion of the construction industry in the near term and result in higher bid prices.
What role can construction lawyers play in the development of states?
Living standards and prosperity in every country are dependent on adequate housing and infrastructure; clean drinking water and sanitation are essential to improving health and increasing lifespans. Many countries have a huge deficit in transportation, communication and other essential infrastructure. International construction contracts play a fundamental role in projects funded by multilateral development banks, and in developments such as China’s Belt and Road Initiative. Construction lawyers have an important role to play in successful projects by ensuring that contracts are relevant, effective and appropriate for the requirements of the local conditions and the local law. International contracts provide an opportunity to promote best practices in contract execution, project management, dispute avoidance and resolution. In drafting appropriate contracts, construction lawyers should recognise that they are not only a statement of legal rights and obligations, but also a contract management manual that, if followed, can encourage collaborative relationships and minimise disputes. The end result of such a successful construction contract will provide a facility that fulfils its purpose and provides the best value for money.
Where, in your opinion, does the future of the practice area lie?
The future lies in promoting dispute avoidance and providing parties with the most efficient processes for resolving disputes consistent with the parties’ requirements. On large projects, the flexible processes available to dispute boards have proven effective in assisting parties to avoid disputes, or where disputes cannot be avoided, resolving them efficiently and timeously. Smaller projects can take advantage of cost-effective processes such as mediation or expert determination that are speedier and less costly than litigation or arbitration. Given the range of dispute resolution processes available, there is considerable scope for a dispute resolution adviser to advise disputing parties on the most appropriate process for a given dispute in the specific circumstances.
Donald Charrett is looked upon with enormous favour by sources for his vast experience in construction and engineering disputes.
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.
Donald Charrett is an authoritative figure in the market with extensive technical knowledge and experience across a variety of quantum and contract disputes.
Dr Charrett is a barrister, arbitrator and mediator, practising in technology, engineering and construction disputes. Prior to joining the Victorian Bar, he was a solicitor at a large Australian law firm. His construction law briefs have included litigation, mediation, expert determination, facilitation of experts’ conferences, arbitration, Supreme Court special references and membership of dispute boards. He is a member of the FIDIC president’s list of adjudicators, a fellow of the Chartered Institute of Arbitrators and an accredited FIDIC trainer. He is a senior fellow at the University of Melbourne and was named “best construction law practitioner (Australia)” in 2016 by Business Worldwide magazine.
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 expert evidence, FIDIC contracts, dispute boards, 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 author of The Application of Contracts in Engineering and Construction Projects and joint author of The Application of Contracts in Developing Oil and Gas Projects and Practical Guide to Engineering and Construction Contracts.