Charles O’Neil – Dispute Experience

CHARLES O’NEIL DipArb FCIArb

Chartered Arbitrator and Accredited Mediator

Galileistrasse 4, 65193 Wiesbaden, Germany

Mobile: +49 151 434 60 224

Somerset Consult, International House, 1 St Katherine’s Way, London E1W 1TW

Tel:  +44 (0) 870 991 7749

charles_oneil@contractdynamics.com

CAREER SUMMARY

Charles has 40 years’ experience in steel fabrication; design & construction; property development and asset management; including high-rise buildings; mining installations, industrial facilities and processing factories, grain terminals and aircraft hangars; PPP hospitals, schools, prisons and motorways; hotels, serviced apartments and shopping centres. For details, refer to my attached. Career Profile.

Charles has worked in the UK, Europe, Africa, Australia, New Zealand, Canada, Chile, Vietnam, Malaysia, Singapore, HK, China, India and Indonesia. From 2001-11 Charles specialised in Public Private Partnerships and PPP dispute resolution, in executive positions with Bilfinger Project Investments in the UK, Europe, Australia and Canada. In 2009-11 Charles was based in Luxembourg and Germany as Director of Asset Management of the Bilfinger global infrastructure portfolio, reporting to the Board on the design and construction phase; and on the operational performance and risk management of more than 60 facilities in 8 countries.

RECENT APPOINTMENTS AND DISPUTE EXPERIENCE (2011-14)

2011 London Olympic Park – engaged in a team of three to undertake an independent review of the design and construction of the district energy supply and distribution contract at Olympic Park, which comprises 630 acres and was one of Europe’s biggest urban redevelopments. The energy requirements are supplied through 79 sub-stations to the Olympic Venues and Village, the Westfield Stratford shopping centre and numerous new hotels, residential and commercial complexes. When appointed the contractor was 11 months behind programme; in dispute with 18 sub-contractors, who had largely withdrawn their workforces; and lacking necessary planning and building approvals. Our role was to advise the contractor on pragmatically resolving the issues with the sub-contractors; obtaining the approvals; and getting the project back on track in order to meet the deadline for the Olympics. This was achieved successfully.

2012-13 East Africa – I was appointed by an East African Government as an independent negotiator to proactively chair settlement negotiations of multiple construction disputes between the government and two foreign contractors. This involved using my arbitration and industry experience to advise the parties on their rights and obligations under the FIDIC Contract; on the contractual validity of each claim and on the reasonableness of the quantum claimed; and on the likely outcome if each dispute ended up in ICC arbitration

There were 102 disputed claims; 45 construction claims and 57 extension-of-time claims, negotiated over a 16 month period. The EOT claims included daily cost charges and involved considerable concurrency, the resolution of which formed part of the negotiated agreements.

I provided my findings with full reasoning for each disputed claim, with the legal and contractual soundness of this reasoning being all-important given that one party or the other would not be successful, but would consult closely with their lawyers before accepting my advice. This happened with many of the claims. During this period, I also wrote 6 Expert Opinions on specific areas of interpretation and application of the amended FIDIC Contract, with these Opinions all being passed to the international law firms representing the three parties to the negotiations. These Opinions formed the basis for settling many of the claims.

2013 Houston – engaged as advisor on risk management processes for major projects by a company involved in EPC’s in the oil, gas and petrochemical industry

2013 ResoLex Holdings UK – appointed to the company Advisory Panel. ResoLex specialises in risk management and dispute resolution on construction projects

2014 Port of Brisbane construction dispute – represented a sub-contractor in successfully obtaining a disputed payment from a head contractor, invoking the “Queensland Building and Construction Industry Payments Act 2004″.

2014 CIARB Presidential Property Dispute Panel – appointed to this newly formed UK Panel.

2011-14 Sole Arbitrator – Awards written on six commercial matters.

GENERAL DISPUTE RESOLUTION EXPERIENCE

Charles has participated in a wide range of commercial disputes in Asia, Europe, UK, Canada, Africa and Australia, including disputes relating to standard D&C and PPP contracts and construction insurance matters; involving arbitration, mediation, expert determination, adjudication, litigation and expert witnessing; specialising in negotiated commercial settlements.

PPP Concession Contracts – more than 40 disputes to date. Generally there are four primary contracts; the Project Agreement, Finance Agreement, D&C Contract and FM Services Contract. The disputes have involved a wide range of issues including contractual obligations, financing arrangements, scope of works, functionality and risk pass-through; with the disputes involving issues in all the primary contracts.

Property and Construction Disputes

  • A professional liability claim against a Consulting Engineer, resulting in a $1.0m settlement (claimant’s representative).
  • A sub-contractors claim under the NSW Security of Payments Act 1999, in which the builder missed the procedural time limits, resulting in having to pay the claim and then resort to adjudication on the merits (strategy advisor to the builder, who recovered 80% of the amount).
  • Payment for variations claimed against a qualifying statement in a construction Bid proposal which were contested by the client (managed the builder’s successful claim).
  • Legal dispute over the copyright ownership of engineering design drawings for a Government contract. The private contractor successfully claimed ownership of the innovative structural design in an out-of-court settlement (private contractor’s representative).
  • Advice on drafting penalty/bonus terms of contract in lieu of liquidated damages in an Asian cross-border construction contract (investor client’s representative).
  • A Supreme Court litigation in which an insurance company asserted that the claimant builder was not insured for an industrial building collapse during an engineered dismantling process because they were in fact undertaking demolition, which was not covered under the insurance policy. Settled in favour of the builder after four days in Court (managed the case on behalf of the builder).

ARBITRATION EXPERIENCE

  • 2011-14 Six commercial arbitration Awards, acting as sole arbitrator.
  • Managing two arbitrations between a leading global construction company and an Australian State Government. The governing law was Australian law and the sums in dispute were $7.5m and $1.7m. The proceedings were placed on hold by mutual agreement after 12 months and prior to the Hearing, with a resultant settlement.
  • Specialist advisor to an investment fund involved in a $10.0m insurance dispute going to arbitration. I provided independent analysis of the case merits and advice on strategy. Settled prior to the appointment of the Tribunal.
  • Follow-up research and client advice on strategies for enforcing an international arbitration Award which had been set aside by a local court in South East Asia, with particular reference to the New York Convention 1958.

ADR EXPERIENCE

Commercial Dispute Management and Negotiated Settlements – Charles specialises in this area, providing senior corporate management with independent contractual and strategic advice on achieving expeditious resolution and cost containment of disputes through negotiated settlements.

Mediation

  • Joint mediator in a complex construction Extension of Time dispute on a major health infrastructure project, which successfully resulted in the EOT Terms of Contract being re-written by mutual agreement of the parties, which comprised the Client, Head Contractor and Sub Contract Builder. Opinions were also received from three international experts. The re-drafted EOT Terms were subsequently adopted by the State as the standard Terms for PPP projects.
  • Independent negotiator in the settlement of a dispute between more than 100 markets stall-holders with long term leases and a property developer seeking to re-develop the markets site and construct a multi-storey building on top of it. The dispute was over the terms of a temporary relocation; the building design and the lease-back terms for the new development. The development had been held up for 18 months by court injunctions and three separate litigations were in process. Over a 6 month period, I assisted the parties to negotiate a re-design and full settlement of the commercial terms.
  • Mediator in a case in which a Client claimed against a legal firm for excessive charges in a long-running litigation. The legal firm refunded $400,000 fees.
  • Successful mediation in Sydney in 2013 to resolve a four year dispute between a developer and a builder over defects and outstanding works retention sums being held by the developer and the consequent non-release by the builder of contractor certifications required for the issue of the Occupancy Certificate.

Expert Determination

  • Charles has acted as party representative in six Expert Determinations in the UK and Australia, all of which related to disputes arising in PPP contracts.

Expert Witness

  • Engaged as an expert by an insurance company to investigate the structural integrity of an owner built private home that was showing substantial cracking in the walls, with the owner claimed the cracking was caused by blasting on a nearby motorway construction. The investigation showed the clay soil foundations were substantially under-built compared to the engineering design.

QUALIFICATIONS AND PROFESSIONAL AFFILIATIONS

  • Postgraduate Diploma in Arbitration, Reading University, UK
  • Chartered Arbitrator – The Chartered Institute of Arbitrators, UK (CIArb)
  • Fellow – The Chartered Institute of Arbitrators, UK
  • Fellow – Australian Centre for International Commercial Arbitration (ACICA)
  • Accredited Mediator – The Chartered Institute of Arbitrators, UK
  • Panel Member – ResoLex UK
  • Kuala Lumpur Regional Centre for Arbitration (KLRCA)
  • The Centre for Effective Dispute Resolution (CEDR)
  • London Court of International Arbitration (LCIA)
  • The Dispute Resolution Board Foundation (DRBF)

Asian Development Bank listed consultant – CMS Registration No. 052863

PUBLICATIONS AND SPEECHES

  • Human Dynamics in Construction Risk Management-the key to success or failure – Charles O’Neil FCIArb and 12 industry contributors – ISBN 978-0-692-30893-6 -published by Nxtbook Media November 2014
  • “London 2012 Olympic & Paralympic Games – Securing Regeneration for East London” – by Charles O’Neil FCIArb & Ian Williams MSc, CEng, FICE, FCIArb – Head of Projects for the Government Olympic Executive, London 2012, Published in ACICA Journal Dec 2011
  • “60 Day Expert Determination – Structured to Meet the Commercial Expectations of Business management” – Charles O’Neil FCIArb & Dr. Michael Hammes 2010, Published in CIArb Arbitration Journal April 2011 and in The Construction Law Journal April 2012
  • “Arbitration from a Commercial Client’s Perspective” – Speech to NSW Law Society Sep 2008, Published in CIArb Arbitration Journal Feb 2009
  • “ The Need for a New Approach to Construction Risk Management” – Published in February 2014 in the Driver Trett Global Newsletter
  • “Checklist for Development Managers – 1998”