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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

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.

Questions & Answers

Mike is a chartered quantity surveyor who has over 35 years’ experience in the industry and has worked internationally for many years, with the last 18 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. He acts a quantum expert witness on a number of construction disputes, 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 23 times and is a CEDR accredited mediator.

What do clients look for in an effective expert witness?

Clients look for a variety of qualities, which can vary based upon particular case circumstances but would likely include an expert who is persuasive, credible knows his (or her) reports and the evidence, and above all is independent and be seen to be independent. In addition to this, clients look for an expert who has the ability to see through large amounts of data to identify the material issues that are relevant to the particular expertise and can identify appropriate and proportionate investigations and analysis.

Underpinning these qualities, effective expert witnesses also tend show and demonstrate the following skills and capabilities: a track record and experience of being involved in formal hearings (arbitration and litigation) and knowing the process; being an effective communicator who is able to clearly and simply convey complex situations; an ability to write clear and structured reports; understands the role of an expert witness and where the duties and responsibilities sit; is able to provide progressive and iterative opinions; and is a team player who can work with different parts of the client and legal team.

How has covid-19 affected expert work and the way in which matters are conducted, and can you see these changes lasting long-term?

Covid-19, has caused a change in the market place and is also influencing other parts of the market. The changes have largely been caused, where international arbitrations have tribunals, counsel, legal teams and experts being based in different locations around the world. The restrictions, quarantine regulations and general health, safety and welfare awareness has caused certainly during the first wave of covid-19, a number of hearings to be postponed or to move towards a virtual process. Hearings have either moved to wholly virtually or partially but were none the less having some parts of the hearing being delivered through an IT hosting platform such as Zoom or MS Teams.

Having been involved in both types of hearings (wholly and partial), it has to be said that the platforms and process came across far better than I had expected. This does mean, however, that IT platforms and support systems do need to be robust to avoid unstable signals and transfer of data. Nonetheless, I do believe that virtual hearings are a welcome development, but not a panacea for all. It would appear to me that certain witnesses in remote locations, or indeed procedural hearings and the like would be well suited to such an approach.

What types of covid-19-related disputes are you beginning to encounter? How are you navigating them?

The covid-19-related disputes that we are starting to be involved in are predominantly within the construction and engineering sectors. Site access issues, labour shortages, material delivery and availability as well as restricted working practices are all matters that would affect any project. It appears that these, among other factors, would have influence on progress, productivity and the cost of delivering any project. Therefore, it appears that we have legacy issues on projects where the contracts were entered into in a pre-covid phase, which would likely materialise in issues, claims and disputes.

There is also a post-covid phase to consider where contracts are entered into where second or third waves have already or are being encountered. Where this fits within the risk profile of the contract and associated insurance provisions as known or un-known events is an issue to be addressed.

Would you say that effectively managing the increasingly vast amounts of data in construction disputes has become more difficult in the past year? If so, why is this the case, and how have you adapted your approach?

Large amounts of data or ‘big data’, does mean that experts need to develop skills in filtering large data sources. This needs to be deployed to ensure that the investigation and analysis is on ‘point’ but at the same time needs to be proportionate. It is an interesting proposition to be relevant, focused and proportionate, when you have received ‘terabytes’ of data that is unorganised and random in its disclosure.

To be able to deal with this you may need to deploy software, predictive coding techniques and pilot exercises, which need to be blended with a huge dose of experience. This is because you need to know what to look for, broadly where and why. This can also mean that early discussions with the legal team and on some occasions with the tribunal, to agree to sampling approaches where appropriate, is highly valuable and relevant to sifting through the data and maintaining proportionality.

Sources have noticed more tribunal interference surrounding expert use, work and management. What advantages might this bring?

I wouldn’t necessarily refer to it as ‘interference’ more perhaps active intervention, as it appears to me that tribunals are now actively controlling the interlocutory process and the use and direction of experts.

This appears to be manifesting itself with tribunals now actively setting and controlling the agenda for experts. This means that the expert list of issues are established early, to align the evidence to the case before the tribunal. Also the use of agreed common data sets is frequently identified as a requirement, along with progress monitoring of the deliverables and the use of progressive joint statements which build upon one another, starting with methods and progressing in levels of detail through the issues.

All of this happens ahead of the issuing of any individual reports.

The tribunal interventions do appear to focus and align the expert evidence around the issues, as well as maintain proportionate effort and costs. As with any case, there is not a ‘one-size’ fits all approach, but none the less the general trend and input from tribunals I see as a positive one.

In what ways has the political situation in Hong Kong impacted the construction market and your work? 

The political landscape is continuing to change in Hong Kong, which was always at some stage going to be a feature in the 50-year Basic Law period. The effect while far reaching to many aspects of society and the economy, did also impact the construction industry and the arbitration market. Projects and hearings were stalled or suspended, and it undoubtedly caused some uncertainty. This being further compounded by the arrival and effects of covid-19 across the wider society.

However, Hong Kong is a resilient market and while we are still living day to day with the effects of both the political and covid-19 changes in our lives, the markets appear to be showing strong and sustainable trends which support the established and respected economy of Hong Kong. This is being underpinned by the continuing global reputation of the Hong Kong International Arbitration Centre and acting as a regional hub for ad hoc and institutional arbitration, and mediation.

To what extent will Hong Kong continue to thrive as a base for construction dispute work in the future, and why?

Hong Kong as a dispute hub, continues to have a steady throughput of construction-related matters as a result of a number of influences, which includes in particular the large volume of continuing investment in infrastructure projects across the territory. Demands will no doubt also be fuelled by the third runway at the Hong Kong Airport, the MTRC projects and also the Pearl River developments.

The demand will not necessarily be solely arbitration-led disputes, as the government and various bodies continue to explore new or adapted existing forms of contract, along with various forms of alternative dispute resolution.

Therefore, the dispute resolution methods will include a blend of arbitration, mediation, early neutral evaluation, independent reviews, expert determination, dispute resolution advisers and short form arbitrations. 

Combined with a steady volume of construction and engineering works, along with established and new innovative methods of dispute resolution the market perspective looks to be a positive one. 

What traditionally overlooked skills and traits would you encourage the next generation of construction experts to develop?

There are many requirements that contribute to this and of course each individual has their own unique set of circumstances. I wouldn’t necessarily say that these traits are overlooked, but what I have noticed is that successful and developing people have in large parts the following traits, which in no particular order as are: a willingness to learn; an ability to listen; an ability to watch and observe as well as question at the right times; an ability to challenge themselves and seek out others to discuss their experiences; training and clarity on the role of the expert; and have found and are learning from (being mentored) by a respected expert.

I also consider that having shades of these qualities combined with a genuine thirst to develop will mean that there will be times when new approaches should be tried. Mistakes may happen, but are then corrected, such that at the forefront of an individual’s development is performance improvement.

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.

Thought Leaders - Construction Experts 2020

Q&A

WWL Ranking: 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.

Questions & Answers

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 18 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. He acts a quantum expert witness on a number of construction disputes, 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 22 times and is a CEDR accredited mediator.

What challenges do you face with the increased volume of data being used in disputes? 

This requires you to not only be proficient with the capability to deal with and process large amounts of electronic data, but ever more so, you require a clear sense of direction around what you are looking for and what you want to achieve from any investigation. This also promotes the requirement to use innovative techniques to sift through large amounts of data, as well as a clear perspective on the requirement to be proportionate in what you review.

An uptick of PPP’s in Hong Kong has been highlighted recently. What do you think the reasons for this are and what impact will this have on the construction industry? 

The industry as a whole is looking for new and innovative ways to stimulate the economy and seeking outside investment is one such measure. I don’t consider this as over-taking government or owner investment but see this as one of the components required in order to stimulate the economy and industry as a whole.

Why is it becoming increasingly important to carefully manage conflicts of interests when appointing expert witnesses in international construction disputes? 

Conflicts of interest have always been an important feature, when accepting appointments as an expert witness. Although it does appear that with larger scale disputes and perhaps a fewer select group of experienced, capable and available experts, the desire to retain those experts can sometimes present challenges within that smaller pool. Also, as organisations in terms of both expert firms and parties expand their international presence the issue of conflicts is on occasions becoming more complex to assess. 

In what ways has the political situation in Hong Kong impacted the construction sector and your practice? 

The protests that started more recently in mid-2019 have undoubtedly caused a blip in the construction sector. There is no doubt that the legacy projects have continued throughout this period, but for various reasons it certainly appears that some of the government programmes planned for debate and approval in this financial budgeting term, will be delayed. It is however worthy of note that the HIAC in particular has maintained a steady stream of arbitrations and mediations, which still perhaps points towards a solid core of work, which may well continue unaffected by recent events.

With the Hong Kong government looking to rebuild the country’s image as a travel destination, where do you think the future of the construction industry lies? 

Hong Kong, firstly as an aviation and transportation hub has a unique geographical location which uniquely positions the city between, North, South and South East Asia. The investment into the Hong Kong Airport and its new terminal and 3rd runway will further cement Hong Kong as a uniquely located travel hub, that will also allow and enable efficient transiting where required. Therefore, with a major construction spend attached to this development, further MTRC rail development and the associated leisure developments will place the industry with a strong pipeline of work.

How does Secretariat stand out from its competitors in the market? 

We pride ourselves on “Experience above all”. That means that we have centred the firm’s market position, development and any associated growth around having experienced experts, which in turn drives quality. To enable this to happen we only recruit the very best in their respective fields and so to have an outstanding complement of experts listed in WWL. We are also ranked second in GAR’s global expert power index, demonstrating that our strategy is delivering results and being recognised by the market. 

In what ways has covid-19 impacted your work as an expert? 

Covid-19 has caused some hearings and procedural deadlines to be delayed, but work has continued and likewise hearings. Some of those hearings have switched over to being virtual hearings, which I have been pleasantly surprised at how effective they have been run and evidence adduced. It also appears that from the early signs that I see in enquiries and appointments that the consequences of covid-19 on construction and engineering sites is also going to become a source of work in relation to the cause of future disputes.

What advice would you give to younger experts hoping one day to be in your position? 

To gain as much practical experience as you can, as early as you can. 

Make sure you are part of an active mentoring, learning and development programme, that is real and gives you the opportunity to learn off each other and senior experts. 

Seek and be willing to listen and receive active feedback. Above all else be willing to invest the time and effort into your own career.

WWL Ranking: Thought Leader

Global Leader

WWL Ranking: Global Elite Thought Leader

Peers and clients say

"He is without a doubt a thought leader"
"Mike is focused, organised and responsive"
"He is able to understand the wider context in which his evidence will sit and help refine case strategy, and at the same time is fully conversant with the detailed figures and data in support"

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 several construction disputes, acting 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 22 times.

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: Recommended

WWL says

Mike Allen is singled out as the “best in the region” by sources who note he “performs very well in the quantum arena”.

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 several construction disputes, acting 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 22 times.

Mike is also a CEDR-accredited mediator.

WWL Ranking: Recommended

WWL says

The "very professional" Mike Allen is "calm under cross-examination" and thoroughly impressive for complex damages claims according to sources.

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 several construction disputes, acting 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 22 times.

Mike is also a CEDR-accredited mediator.

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