Dennis Fry is committed to the avoidance of disputes if at all possible, and if disputes do arise, to their early settlement in the most timely and cost effective manner. Dispute avoidance can frequently be achieved by ensuring that the relevant individuals on both sides are fully aware of their contractual responsibilities, and are also alert to the strategies required in a particular set of circumstances to prevent a disagreement from developing into a full blown dispute with potentially serious commercial consequences. In this regard appropriate training is important, as is the ability to negotiate difficulties in a constructive manner.
In larger more complex projects Dispute Boards provide an effective means of anticipating and dealing with potential disputes in a timely and cost effective manner. A Dispute Board consists of three (on smaller projects possibly one) independent experts in the field. The Dispute Board is appointed at the start of the project and maintains an active involvement throughout its life. Depending on the terms of engagement the Dispute Board either provides recommendations or adjudicates on disputes as they arise, thus facilitating early resolution and minimising damaging ongoing conflict.
If a dispute does arise which cannot be resolved by negotiation between the parties a settlement can frequently be achieved speedily and at relatively low cost by a facilitated negotiation, typically in the form of a formal Mediation. This is an important and valuable process in that the parties retain "ownership" of the settlement agreement, the Mediator facilitating the process and helping to resolve difficulties such as personality conflicts and power imbalances. Mediations can frequently result in "win-win" settlement agreements which maintain future business relationships.
In many contractual situations disputes may be resolved quickly, and with limited prejudice to the ongoing project, by reference to a neutral third party acting as either Adjudicator or Expert. In both Adjudication and Expert Determination the neutral will have a limited time (typically 28 days) to reach a decision which will be based on the best information available to him or her. The important distinction between the two procedures is that an Adjudicator is acting in a quasi-judicial manner, and must consider and decide the dispute based on the the evidence put to him by both parties. In an Expert Determination the neutral uses his or her expertise in the field of the dispute to arrive at a decision, whilst maintaining complete independence and acting entirely impartially. Adjudication is usually more appropriate where important issues of fact and law arise. An Expert Determination is usually more appropriate where an expert in the field is able to use his or her expertise to make a pronouncement on an issue in dispute such as the quality or the value of work done. However, a question of law may be decided in an Expert Determination if that question is contained in the parties' instructions to the Expert (Nikko Hotels (UK) Ltd v MEPC plc [1991] 2 EGLR 103). Typically an adjudication decision must be complied with but may be open to challenge in subsequent arbitration or litigation, and an expert determination will be final and binding. However the exact terms of the Adjudication or Expert Determination provision are subject to the agreement of the parties and it is important that proper legal advice is obtained.
Although contractual disputes may, in the absence of other provisions, be resolved by litigation in the courts, this is frequently less than satisfactory, particularly in international disputes where neither party wishes to submit to the jusrisdiction of a foreign court. Arbitration provides an alternative to litigation which has many advantages including flexibility of procedure and, provided the correct procedures are adopted, cost effectiveness, expedition, certainty (i.e. very limited scope for appeal) and confidentiality. Arbitration allows the parties to appoint neutral arbitrators, who may be experts in the field of the dispute, and have the matter dealt with in a neutral venue. Most countries are signatories to the 1958 New York Convention on the Enforcement and Recognition of Foreign Arbitral Awards, so an award in an interantional arbitration can potentially be enforced in most parts of the world. There are many different established procedures and sets of rules which can be applied to an Arbitration, and considerations such as the legal "seat" of the arbitration will determine the procedural law and the powers of the national courts to intervene. It is therefore important to seek proper legal advice when entering into an arbitration agreement, particularly in an international context.
Dennis Fry is an experienced International Arbitrator and Dispute Resolution Professional, and is able to act as:
Arbitrator
Mediator
Adjudicator
Expert Determination Neutral
Dispute Board Member
Dispute Resolution Consultant
His Arbitration experience includes:
A very complex and long running arbitration (aggregated claim and counterclaim in excess of US$140m) relating to an EPIC contract for the complete topsides systems for an FPSO
Alleged failure to honour a Parent Company Guarantee in connection with a contract for the design and supply of offshore topsides process equipment
A dispute relating to the provision of services and payment in respect of an Offshore Service Agreement
A dispute relating to the hire of a drilling rig for service offshore West Africa (aggregated claim and counterclaim c.US$50m)
A charterparty arbitration on LMAA Terms relating to alleged carriage of excluded cargo
An arbitration under UNCITRAL rules relating to the installation of a drilling platform in the Caspian Sea
Sole arbitrator in a claim for outstanding payment for oilfield services
Sole arbitrator in a claim relating to hire of oilfield equipment and provision of related services
Sole arbitrator in a claim for payment of professional fees relating to provision of HSEIA and HAZOP services
Sole Arbitrator in a dispute relating to payment of commissions for agency services in the oil & gas supply sector
A claim for payment of sums due, with allegations of delay and prevention, and a counterclaim for liquidated damages, relating to the construction of an FPSO
A claim for injunctive relief and damages for alleged breach of offshore Oil & Gas JOA
A claim for contractual variations relating to construction of an FPSO
Two linked arbitrations relating to alleged multiple breaches of contract arising from a construction project in N Africa
Sole arbitrator in a claim relating to alleged breach of agent's fiduciary duty in the Oil & Gas supply sector
Chairman of three person tribunal appointed on LMAA Terms in dispute relating to alleged defective design of large floating crane/pipelay barge
His Mediation experience covers a wide range of commercial and other matters including:
boundary disputes
landlord and tenant disputes
a dispute between potential beneficiaries over an alleged trust
a dispute over quality of goods supplied to a large national retail chain
commercial claims for non-payment of account and quality of work
a charterparty dispute relating to alleged wrongful recission and redelivery of vessel
a multi-party commercial dispute relating to alleged breach of confidentiality and passing-off
a complex very high value multi-party international dispute relating to insurance and reinsurance of a damaged petrochemcal plant.
Adjudication: Dennis Fry has been appointed as adjudicator under the provisions of the UK Housing Grants Contraction and Regeneration Act 1996. He is also a supporter of the incorporation of adjudication provisions into contracts which are not contruction contracts within the meaning of the act.
Expert Determination: Dennis Fry is a firm believer in the benefits of the speedy and economical resolution of technical disputes by the use of Expert Determination. He has been appointed to an Expert Determination Panel for a World Bank funded project in central Africa.
