Hervé heads Accuracy’s practice advising clients involved in complex projects. He specialises in providing forensic delay analysis and business advice on large international infrastructure projects. He has acted as party and tribunal-appointed expert witness in High Court litigation and international arbitration under, inter alia, ICC, ICSID, LCIA, UNCITRAL, CACFEDF and Swiss CCI rules. He has given evidence in English and French, and has been acting as joint party-appointed expert in mediations. Hervé has a degree in civil engineering and an MBA specialising in project finance and project risk management. He is also a CEDR-accredited mediator.
Describe your career to date.
I have been privileged to work for – then on behalf of – international contractors and clients on projects across a number of sectors, seeking to solve complex and often business critical issues.
I began my career delivering infrastructure projects for an international civil engineering firm in West Africa, the Middle East and Central America. I then moved to consulting and have been dividing my client work between expert witness work in dispute resolution and business advisory on non-contentious issues. My personal journey with Accuracy began 10 years ago and continues to blossom.
How does Accuracy stand out among competitors in the market?
What I have observed in construction disputes over the years applies across all other sectors in which Accuracy is involved. As a multidisciplinary practice focused on complex projects, we are, in relation to litigation and arbitration, more than a group of individual delay or quantum experts.
We focus on the compatibility of our analyses and we provide the required feeds for the wider dispute. For me this often means working hand in hand with our economists and finance specialists to provide one work product which is best suited to a client’s or tribunal’s needs. We complement this with our advisory work, which sees our team engaged in active projects, helping clients solve complex issues. Most importantly, we pride ourselves in demonstrating that the opinion of an expert in arbitration is only as good as the analyses behind it. For that reason, we encourage our younger generation of experts to develop analyses in teams and testify in pairs when the context allows it.
To what extent is a global and multilingual presence necessary in current arbitration practice?
First, the emergence of new arbitral seats across the world has broadened the range of options for corporates and law firms. Although this is not true for all cases or contexts, as experts we need to match that breadth.
Secondly, although our work products, in the forms of written and oral evidence, are delivered in only a few of the most common languages used to draft commercial contracts or referred to in dispute resolution clauses, the evidence we need to review and understand is increasingly in other languages. The need for a team to operate in three or more languages on a single case is becoming commonplace.
Finally, corporates including our long-term clients have spread globally. In doing so, many have decentralised the management of their disputes. We need to work in close proximity with these local teams to be effective and responsive to their needs.
As airport construction projects have increased in complexity, in what ways has the character of related disputes changed?
Airports are technically complex to construct because of the scale and breadth of the facilities and types of infrastructure they encompass. Airport projects can face some of their key challenges during their gestation period, from conception to delivery. In particular, project teams must be reactive to developments in technology, especially in relation to the services and systems it provides as part of the customer experience, as well as those required to manage air traffic in to and out of the airport.
This can lead to long and costly design development iterations and ultimately changes in scope. These changes require a wider understanding of the pains and pressures technology projects face, and nuances in the causation and liability issues at the heart of disputes arising from changes during the development period.
How are transport and infrastructure disputes in South East Asia and South America currently evolving?
State-backed investment initiatives are having a significant impact on infrastructure projects across South East Asia and South America. While these initiatives provide substantial economic opportunities, they raise the possibility for international commercial disputes and concerns over the debt burdens incurred as part of the projects.
Disputes arising from these initiatives tend to involve large companies with funding sourced from outside of a project’s home market. They can involve different governments as stakeholders, which can complicate the jurisdiction to which disputes are subject. Traditionally, international commercial disputes follow Western norms and are adversarial in nature. However, as a result of the stakeholders and parties involved in projects procured under these initiatives, the emphasis for dispute resolution is often changed, leading to a more consensus-driven approach, promoting mediation and better reflecting cultural values. China’s own court reforms have highlighted the integral role mediation is likely to play as part of a multi-tier process. At the start of 2019, Singapore and China issued a pro-mediation statement of intent, which I am particularly interested to follow.
What challenges do you think lie ahead for the construction world in the coming years?
Construction is susceptible to variations in economic confidence and political cycles, with spending on projects often the first to suffer. This leads the sector into bad habits as long-term investment and strategic research are seen as too risky in a low margin and turbulent sector. However, we cannot ignore the role construction has in addressing the challenges of climate change; increasing global and urban populations; and in cutting our impact on our environment. It is incumbent on us, as industry practitioners, to support key stakeholders, including governments and investors, to take a long-term view of the benefits of construction, and to increase confidence within the supply chains on which these projects are so dependent.
Cases continue to emerge of construction projects that have been subject to over-optimism during the development stages, where robust and reasoned appraisals of project benefits have been sidestepped by a desire to get them delivered. Such cases reinforce the need for greater focus on capital cost optimisation and efficiencies, the key to which lies in sharing insights globally and across sectors, and embracing long-held initiatives to standardise designs and adopt new technologies. The key challenge in many markets is to find a model for contracting that removes or navigates the adversarial relationships within the supply chain. This needs to enable more transparent data sharing, so that clients, contractors and suppliers can better manage, analyse and utilise the digital assets that are integral to the success of every project.
Hervé de Trogoff is an exceptionally highly regarded and active expert in construction disputes. He is renowned for his expertise on major infrastructure projects and natural resources matters. Fellow experts praise him as "a great delay expert".
Hervé de Trogoff is a partner of Accuracy, based in London, and specialises in project advisory and forensic construction planning and programming in a variety of contexts.
He acts as expert witness on entitlements to extensions of time and analysis of delay, acceleration and losses of productivity on large construction, engineering and industrial projects across a wide range of sectors. He also provides advice to owners, developers, contractors and other project actors on setting up the teams and governance on large projects and programmes, project valuation, time-risk management and project audits, and prepares cost and time models on long-term projects.
Hervé is a civil engineer with a background in project management and controls, and has specific experience in project planning. His construction management experience was gained with both contractors and consultants in a number of challenging international environments. He has advised clients in English, French and Spanish and has an academic understanding of the Finnish language.
Hervé has been appointed as delay expert witness in UK High Court litigation and international arbitration under ICC, ICSID, LCIA, UNCITRAL, CACFEDF, Swiss CCI and other ad hoc rules, has given evidence in English and French and has acted as joint party appointed independent expert in mediations.
Hervé has a first-class honours civil engineering degree and has completed an MBA at the London Business School where he specialised in project finance and project risk management.