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Thought Leaders

Thought Leaders

Mike Allen

Mike Allen

SecretariatUnits 304 – 05, 3/F Shui On Centre6-8 Harbour RoadWan ChaiHong KongHong Kong

Thought Leader

WWL Ranking: Global Elite Thought Leader
Thought Leaders - Arbitration Expert Witnesses 2020

Q&A

WWL Ranking: Thought Leader

WWL says

Mike Allen is praised by clients whose are effusive of his testimony, highlighting his “composure in the witness box” and his “calm manner and particular skill in explaining complex issues in a way that is easy for clients and tribunals to understand”.​

Questions & Answers

Mike is a chartered quantity surveyor who has over 30 years’ experience in the industry and has worked internationally for many years, being based full-time in Hong Kong for the past 18 years. He has extensive experience in procurement and contract strategy; dispute resolution; and providing strategic advice to clients on distressed or problem projects. He acts a quantum expert witness on a number of construction disputes, for both claimants and respondents, working with major firms of solicitors and barristers. He has given evidence in the High Court twice, and in domestic and international arbitrations 21 times, and is a CEDR-accredited mediator.

What has been the most interesting matter you have worked on?

I find all the commissions I work on interesting because they all have unique features that present challenges from a specific and individual perspective. This means you cannot, in my view, apply a “cookie cutter” approach, such that you apply the same approach each time. A recent international arbitration presented multiple challenges to the parties, tribunal and experts, whereby the sum in dispute was in excess of US$500 million, the issues across multiple claims and counterclaims were too numerous to individually address in the hearing, each party had six different expert disciplines, and the arbitration endeavoured to use a fast-track process. This arbitration had many interesting features, but the one I would like to emphasise is that the tribunal and experts in particular had to work together to address the issues and put the tribunal in the best possible position of having the relevant material to assist with its award writing. This of course requires experts that clearly understand their overriding duty, and can embrace and adhere to the process and timetable set down by the tribunal.

What valuable insights do you gain working with clients at different levels of the supply chain? 

By working with clients at all levels of the supply chain, I believe this not only provides you with enhanced insight when being instructed by an opposing party at a different level to the previous instructions – it also provides you with an independent sense of balance and degree, and not having to solely rely upon those instructing you. This can assist in the document analysis and, in particular, can provide you with a clear compass to guide your investigations and analysis prior to forming the reasoned opinions.

How can clients minimise the risk of disputes arising?

This is a very large topic that I can’t give justice to in a few lines. However, in a few soundbites, here goes… We know that construction and engineering projects present their own unique risks project by project, and so it appears to me that in looking to minimise the risk of disputes occurring, one should look at some of the major causes of various disputes occurring. These can range from, among other things, poor contract administration, a failure to properly administer the contract, failure to comply with condition precedent requirements, and poorly drafted contracts and claims. I suggest that, among many things to consider, in the first instance there is a focus and awareness upon what you can control and influence, and then you can develop a plan to address the areas that you control. This, it would appear, should include contract compliance; updating submissions at frequent intervals; and making sure that claims are progressive and build upon soundly established legal and factual principles, supported by reasoned substantiation that is supported by records and is part of a regular and ongoing dialogue between the parties and their advisers. Finally, the use of an escalating approach to filter the disputes that should be part of pragmatic and commercial discussions should also be deployed, such that if a dispute does materialise then it is merited and is solely about the allocation of the impact of an event, and not the details of the event, the costs or the notice requirements (ie, the technical points). 

How are the benefits of big data being harnessed in arbitrations?

Big data is having to be used because on the larger arbitrations it is commonplace to have terabytes of data being disclosed. This means that not only does there need to be a clear protocol established by the tribunal, including a referencing system, among other things, but also the way in which the documents are disclosed is critical. It is not uncommon for reluctant litigants to disclose huge quantities of electronic data, with no filing system or searchable facility, and so directions from the tribunal can be critical in this regard. In using the data that has been disclosed, this does mean that innovative techniques are required to isolate and extract the relevant data, which can mean that the use of predictive coding, among other things, can be very helpful. Finally, with so much data typically being available it means that the expert needs a clear sense of direction and a method of understanding as to how to apply the data in a manner that addresses the issue and ultimately makes what quite probably is very complex appear simple. 

What are the main challenges currently facing experts conducting complex data analyses?

Experts face many challenges in this regard, but probably the key areas are being able to identify what data is to be analysed and how that analysis will be undertaken, along with knowing and accepting that the expert will not be able to review every document. This promotes the challenge of proportionality, where the expert’s time and costs need to be proportionate to the sum in dispute. This in principle may sound like a relatively easy concept, but in practice it can be challenging, and particularly for quantum experts this will introduce sampling. The expert will need to have a clear understanding of how to build a representative sampling approach that satisfies the expert and their overriding duty, and ultimately satisfies the tribunal. The other aspect, as mentioned above, is that the expert must ensure that any complex analysis, which it is likely to be, must be summarised and presented in a simple, logical and easily understood format – this should be the case in terms of both form and content.

Which procedural changes do you see emerging in arbitration proceedings?

It appears that there is a growing trend for experts to be involved earlier in the procedural timetable, and for tribunals to seek an earlier active engagement with experts. This involves agreeing on a list of expert issues earlier in the process, agreeing common data sets and preparing joint reports ahead of the main reports. The focus, it would appear, is to avoid the “ships passing in the night” scenario, and to ensure that documents, data and expert input are focused upon the real material issues that will help and assist the tribunal. This in my view is a welcome development, albeit it can present some challenges for experts in having to form some very early provisional opinions, which can be used to inform and frame the establishment of the relevant issues for the experts to address.

What trends are you seeing emerging in the types of disputes currently going to arbitration?

It appears that the disputes are following the construction and engineering project cycles, in their location and sector basis. It is now commonplace to have full final account disputes on mega projects or programmes of work. The complexity of these disputes and the technical features within those disputes do appear to be on an ever increasing scale, and while arbitration is still by far the most common form of dispute resolution in our industry, there is a regular flow of mediation and expert determination appointments.

How would you like to develop your practice in the next five years?

Within Secretariat we do have a genuine and committed focus in helping previously non-testifying experts obtain testifying experience. We are proud of the proportion of new testifying experts that we have each year, and so this will not only be a focus for the firm but also for me personally. I would also like to see our suite of expertise expand as it is now common practice to have large construction, engineering and commercial disputes requiring different disciplines which can be provided from one firm. Finally, I would like to continue to invest the time and effort in mentoring and developing all parts of the team, so that they feel challenged and yet supported on a personal and professional growth pathway, which leads towards progressive performance improvement.

WWL Ranking: Thought Leader
WWL Ranking: Thought Leader

Global Leader

WWL Ranking: Recommended

WWL says

Mike Allen is praised by clients whose are effusive of his testimony, highlighting his “composure in the witness box” and his “calm manner and particular skill in explaining complex issues in a way that is easy for clients and tribunals to understand”.​

Biography

Mike is a chartered quantity surveyor who has over 30 years’ experience in the industry and has worked internationally for many years, with the last 13 years being based full time in Hong Kong.  He has extensive experience in procurement and contract strategy, dispute resolution and providing strategic advice to clients on distressed or problem projects.

Mike continues to work on numerous disputes and live projects for employers, contractors and subcontractors.  He provides contract advice, has prepared claims and rebuttals, assisted in negotiations and appeared in many different tribunals.

Mike is experienced in a wide range of civil engineering, building, M&E and process plant contracts, which include the ICE 6th edition, Engineering Construction Contract (NEC), I Chem E Red and Green Book, G90, JCT, GC Works and Sub Contract Forms, which also includes bespoke, simple and situations of no written contract. He also has extensive experience of FIDIC and various standard and ad hoc forms of contract in various countries in Europe, the Middle East, Hong Kong, Philippines, Taiwan, Singapore, South Korea, Sri Lanka, PRC and Australia.

Mike has also worked on a variety of matters which include building, civil engineering, mining, infrastructure, LNG facilities, marine civil engineering and process works. This has been in both a project-related and arbitration environment, where the work has involved the analysis of large amounts of data to produce independent valuations related to a range of claims including delay and disruption, prolongation and variations.

Mike has also been involved in a large number of ground, excavation, mining and reclamation works, as well as rail infrastructure and systems projects. He has been appointed as a quantum expert witness on a number of construction disputes, acting for both claimant and respondent, working with major firms of solicitors and barristers.  He has given evidence in the High Court twice and in domestic and international arbitrations on 17 occasions, as well as in various mediations and conciliations. 

Mike is also a CEDR-accredited mediator.

WWL Ranking: Global Elite Thought Leader

WWL says

Global Elite Thought Leader Mike Allen is an established name, with “great experience” and an “astute” and “very professional approach” to contractual claims and project-related disputes.

Biography

Mike is a chartered quantity surveyor with over 30 years' experience in the industry. He has worked internationally for many years, spending the past 18 years based full-time in Hong Kong. He has extensive experience in procurement and contract strategy; dispute resolution; and providing strategic advice to clients on distressed or problem projects.

Mike works on numerous disputes and live projects for employers, contractors and subcontractors. He provides contract advice, and has prepared claims and rebuttals, assisted in negotiations and appeared in many different tribunals. Mike is experienced in a wide range of civil engineering, building, M&E and process plant contracts, including the ICE sixth edition; Engineering Construction Contract (NEC); I Chem E Red and Green Book; G90; JCT; and GC Works and Sub Contract Forms, which also includes bespoke, simple and situations of no written contract. He also has extensive experience of FIDIC and various standard and ad hoc forms of contract in various countries in Europe, the Middle East, Asia, Africa and Australasia.

Mike’s experience includes building, civil engineering, mining, infrastructure, LNG facilities, marine civil engineering and process works. This has been in both project-related and arbitration environments, where the work has involved the analysis of large amounts of data to produce independent valuations related to a range of claims including delay and disruption, prolongation and variations.

Mike has been appointed as a quantum expert witness on a number of construction disputes, acting for both claimant and respondent, working with major firms of solicitors and barristers. He has given evidence in the High Court twice, and in domestic and international arbitrations 20 times.

Mike is also a CEDR-accredited mediator.

WWL Ranking: Global Elite Thought Leader
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