Technology, Engineering & Construction Law Specialist
Arbitrator, Adjudicator & Commercial Mediator

John has over 30 years of major international project experience, having practised in Wellington, London, Hong Kong and Auckland.  Projects John has advised on have been throughout England, Hong Kong, Singapore, China, Kenya, Australia and New Zealand, particularly in infrastructure development.

Major Project Advice

The main focus of John’s practise is successful project delivery.  He assists at all stages in major projects, as legal adviser from project inception to hand-over for operation and project mediator during construction; truly cradle to the grave.

Dispute Resolution

  • international arbitrator, a Fellow of the Chartered Institute of Arbitrators (FCIArb), and on the Kuala Lumpur Regional Centre for Arbitration and the New Zealand International Arbitration Centre panels of arbitrators
  • domestic arbitrator, a Fellow of the Arbitrators’ and Mediators’ Institute of New Zealand (FAMINZ), and on the AMINZ and New Zealand Dispute Resolution Centre panel of arbitrators
  • Construction Contracts Act 2002 adjudicator, on the AMINZ list of adjudicators and a Principal Adjudicator for the Building Disputes Tribunal
  • commercial mediator, on the AMINZ and the New Zealand Disputes Resolution Centre panels of mediators
  • probity auditor and peer reviewer
Technology, Engineering & Construction Law Specialist

Front End Construction and Infrastructure Project Adviser

Successful projects have a number of common elements:

  • understanding uncertainty and accepting the allocation of risk before the work is priced
  • a procurement process, whether tendered or negotiated, which promotes cooperation rather than conflict
  • selecting and adapting appropriate forms of contract
  • providing mechanisms for dealing fairly with uncertainty, and
  • promoting the early identification and equitable resolution of disputes, albeit on an interim basis.

John is familiar the most popular standard forms used in New Zealand and internationally, including the NZS3910, FIDIC, ICE and NEC3 forms of contract, and he has also drafted, reviewed and advised on the more imaginative finance driven forms of contract like build-own-operate-transfer (BOOT), private-public-partnerships (PPPs) and alliance contracts, and on more complex long term operation and maintenance contracts used, for example, in the electricity industry.

A pro forma copy of John’s letter of engagement is available for download here.

Project Mediator

After the contracts have been signed, the goodwill generated during the procurement process needs to be maintained through the early identification of potential disputes and the fair application of the contract procedures.  John’s familiarity with the relevant industries and his commercial experience is invaluable for promoting successful project outcomes.

One such approach is to appoint a project mediator, or early neutral disputes avoidance specialist, who helps to identify disputes before they arise.  Broadly, the process is as follows:

  • as soon as possible following award, the project mediator calls a meeting of the owner’s and contractor’s project teams – at that meeting, the attendees identify their roles, their contact information, and the relationships they have with other project team members; and the risk register for the project is reviewed
  • the project mediator is then copied in on all contract communications and attends all project control group and site meetings – either party may call a risk meeting, or the project mediator may call such a meeting of his own volition, to identify a potential risk to the project or potential dispute as early as possible
  • in the event the formal dispute procedures are triggered, the project mediator then conducts the mediation

The process is broadly similar to the disputes review boards (or disputes avoidance/adjudication boards) favoured in the FIDIC forms of contract, and used extensively in major projects internationally, but with the project mediator being involved earlier in the project than the traditional DRB; being more focused on early identification and avoidance of disputes before they require adjudication; and being considerably cheaper than the traditional three part DRB.

A copy of John’s project mediation protocol is available for download here.

Arbitrator, Adjudicator & Commercial Mediator

Arbitrator

The benefits of arbitration are threefold:

  • party autonomy – in both selecting appropriate procedures and a specialist arbitrator
  • privacy – commercial parties in dispute have the right to keep their disputes, and the resulting orders, confidential
  • enforceable, cost effective resolution by an expert – both nationally, and internationally, arbitration has the ability to provide expert determination of complex disputes promptly, with a full support of the courts

For cross-border transactions, arbitration also provides the best enforceable result for the parties.  International arbitration is a growing field of expertise, particularly in the construction industry.

John is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and he is a Fellow of the Arbitrators’ and Mediators’ Institute of New Zealand (FAMINZ).

He is also on the AMINZ, Kuala Lumpur Regional Centre for Arbitration, the New Zealand Dispute Resolution Centre and the New Zealand International Arbitration Centre panels of arbitrators.  John is an experienced arbitrator, and in his capacity as a Council Member of AMINZ, he is instrumental in promoting New Zealand as a seat for international arbitration.

A copy of John’s appointment to act as an arbitrator is available for download here.

Commercial Mediator

Commercial mediation, being a consensual process, allows the parties to explore the origins of the dispute, to find acceptable solutions to the dispute at hand, and to adapt their processes and relationships to avoid similar disputes arising in the future.  It is John’s experience that where the parties have a commercial relationship, mediation is best conducted as soon as the potential for dispute has been identified, rather than as a last ditch effort on the court room steps.

A copy of John’s agreement to mediate is available for download here.

Construction Adjudicator

Adjudication under the Construction Contracts Act 2002 has provided fast and effective dispute resolution in the construction industry; it has been a huge success.  John has accepted numerous adjudication appointments since the Act came into force on 1 April 2003 and he is one of New Zealand’s most experienced and respected construction adjudicators; he is on the AMINZ list of adjudicators, and a principal adjudicator for the Building Disputes Tribunal.

As an AMINZ Council Member, John holds the adjudication portfolio; he drafted the submissions in relation to the Construction Contracts Amendment Bill 2013, which it is hoped will be passed in late 2013, early 2014.  John appeared at the Select Committee hearings on the Bill for AMINZ.

Probity Auditor & Peer Reviewer

Probity Auditor & Peer Reviewer

Successful project delivery is not just about following standard procedures, and using accepted forms.  The procurement strategy and the contract terms, particularly for major procurement and construction projects, needs to be tailored to the requirements of the project, and the respective strengths and weaknesses of the parties; the process also needs to be conducted fairly as between the rival bidders for the work if a tendered or other competitive process is used.

Engaging an independent expert to review the tender documents (as peer reviewer) ensures that the procurement strategy follows best practise and is most likely to result in a successful project for all parties; and engaging such an expert to act as probity auditor ensures a fair procurement process.  Competitively tendering major projects is an expensive business for the bidders; for them to invest the time and resources to submitting the best bid they can, having a probity auditor ensure a fair process provides considerable comfort.

As a member of the independent bar, John is well placed to peer review the procedures and documentation for major public sector procurement projects, and to probity audit such projects.  John has a long history of working with procurement teams, and their external legal advisers, in all industry sectors, and all manner of infrastructure projects.

A copy of John’s probity audit protocol is available for download here.

Qualifications
  • LLB (Victoria University of Wellington) 1983
  • LLM (University of Auckland) 2012
  • Barrister and Solicitor High Court of New Zealand 1984
  • Solicitor England & Wales 1992
  • Solicitor Hong Kong 1992
  • FAMINZ (Arb)
  • FCIArb (UK)
  • Council Member Arbitrators’ and Mediators’ Institute of New Zealand 2012 to present
  • Council Member NZ Society of Construction Law 2008-2010
  • Member Institute of Directors

John is on the Kuala Lumpur Regional Centre for Arbitration, New Zealand Dispute Resolution Centre and New Zealand International Arbitration Centre panels of arbitrators; AMINZ and New Zealand Dispute Resolution Centre panels of mediators; and the AMINZ and Building Disputes Tribunal adjudication lists.

Work History
  • 2003 to present – Commercial Barrister
  • 1995 to 2002 – Auckland, NZ (Partner – Buddle Findlay)
  • 1991 to 1994 – Hong Kong (Solicitor – McKenna & Co)
  • 1986 to 1991 – London, UK (Solicitor – Nabarro Nathanson and Park Nelson, Doyle Devonshire)
  • 1982 to 1986 – Wellington, NZ (Solicitor – Scott Morrison Dunphy & Co and Macalister Mazengarb Parkin & Rose)