Practice Areas & Industries: Mayer Brown LLP

 




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Practice/Industry Group Overview

Mayer Brown's team of construction and engineering lawyers is based in London, Hong Kong, Singapore, Houston and Chicago and operates in conjunction with our other offices in the US and Latin America, continental Europe, the Peoples Republic of China, and South East Asia. With over 45 lawyers across Asia, Europe and the Americas, we advise governments, owners, operators, concessionaires, lenders, project sponsors, contractors, consultants and insurers. Our clients are able to draw upon our many years of experience to support their businesses, whatever their role may be. They instruct us in relation to projects that set benchmarks in terms of scale, complexity and risk allocation.

We have represented clients on hundreds of projects in numerous jurisdictions and in every continent. We are recognised as leading practices in each of our domestic markets and one of the pre-eminent global firms advising on the issues arising out of every type of construction and engineering project, including:

  • Transport
  • Infrastructure
  • Oil and gas (upstream, midstream and downstream)
  • Power
  • Alternative energy
  • Process engineering
  • Mining
  • Commercial property
  • Housing
  • Healthcare and education
  • Insurance

We have extensive experience of all the major international and regional standard forms of contract, including FIDIC, IChemE, I Mech E, JCT, NEC, PPC2000, HKIA, SIA, Hong Kong Government civils conditions and AIA, and every method of procurement, including:

  • PPP/PFI schemes
  • BOOT/BOT
  • Target Price contracts
  • Guaranteed Maximum Price contracts
  • Turnkey, EPC and EPCM contracts
  • Design & Construct forms of contract
  • Construction Management
  • Management Contracting
  • Partnering and collaborative working contracts
  • Joint Ventures

We advise on front-end contract strategy and contract documentation, risk management and dispute resolution. Our understanding of the industry means that our advice is commercial, and clients instruct us to represent them when disputes arise because of our track-record and reputation as one of the leading law firms practising in this area with experience of large and complex projects.


 

Services Available

Our front-end project services include:

  • Procurement and contracting strategy
  • Procurement legislation
  • Project risk analysis and allocation
  • Negotiation and drafting of construction and engineering contracts including BOOT and BOT contracts, Turnkey, EPC and EPCM contracts, building and civil engineering contracts, E&M/equipment supply contracts, PFI and PPP contracts, sub-contracts and joint venture arrangements
  • Negotiation and drafting of consultancy agreements including engineering, FEED and project management agreements
  • Negotiation and drafting of operation and maintenance agreements and long term maintenance and supply agreements
  • Negotiation and drafting of development and entrustment agreements
  • Analysis and reporting on construction documentation for funders, investors, tenants and other interested third parties
  • Drafting of ancillary documentation including bonds, guarantees, warranties and direct agreements

Our risk management and dispute resolution services include:

  • Project advice, analysis and claims mitigation
  • Dispute avoidance techniques
  • Dispute adjudication and dispute review boards (DAB and DRB)
  • Statutory and contractual adjudication
  • Mediation
  • Expert determination
  • Neutral evaluation
  • Litigation in court
  • Arbitration (domestic and international)

We also advise insurers on policy coverage and defend claims against insured entities arising out of insurance policies for construction and engineering projects, including professional indemnity, contractor's all risks, public liability and project-specific or owner-controlled policies (OCIP). We advise those involved in the construction and design process about the structure of the insurance arrangements which are required.

Front-end services
Our team provides advice on procurement methods and the contracting strategies to be adopted for projects together with advice on the appropriate construction and engineering contract to use. We also advise on the use of standard forms of construction and engineering contract as well advising and drafting bespoke forms of contract including ancillary documentation, such as performance bonds, guarantees, undertakings, collateral warranties, pricing documentation and conditions of tendering.

We work with a number of other groups including the Finance, Real Estate, Mining and Energy Groups in reviewing, negotiating and drafting construction and engineering documentation. In particular, we work with our Project Finance Group in drafting, negotiating and reviewing EPC contracts and BOT/BOOT arrangements for projects across the globe, as well as take-off agreements, concession agreements, entrustment agreements, operation and maintenance contracts, and performance security documentation.

Risk management and dispute resolution services
We advise clients how best to mitigate the risk of disputes during the implementation phase and how to use the various dispute resolution mechanisms which are available. This includes representing clients during the pre-action stages, which can result in the successful resolution of claims without recourse to formal proceedings, and, where necessary, using alternative methods such as mediation, expert determination, neutral evaluation, dispute adjudication and review boards, and statutory adjudication in the UK. Where formal proceedings cannot be avoided, we have years of experience acting for clients in local courts, including the specialist Technology & Construction Court in London, and local arbitrations.

As one of the leading global practices, we have an established reputation for representing clients in complex international arbitrations subject to the rules of all the major arbitral institutions. These include UNCITRAL, the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the American Arbitration Association (AAA) and its International Centre for Dispute Resolution (ICDR), JAMS, Inc., the Hong Kong International Arbitration Centre (HKIAC), the China International Economic and Trade Arbitration Commission (CIETAC), the Singapore International Arbitration Centre (SIAC), the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Dubai International Arbitration Centre (DIAC) and the International Centre for the Settlement of Investment Disputes (ICSID).

We advise on every type of dispute arising out of construction and engineering projects, such as those relating to payment, valuation and measurement, change orders, delay and disruption, building defects, design and other professional liabilities, contract termination, the insolvency of contractors or owners, and the enforcement of security. We have long-established contacts with all the leading consultants in the industry and can assist clients in finding the best organisation or individual to engage as experts for a particular dispute.

Insurance
Mayer Brown is one of the few global firms also to provide specialist insurance law advice. We advise large international insurance companies, Lloyd’s syndicates and those involved in the construction process on the insurance issues arising out of construction and engineering projects throughout the world. This includes advice on the structure of the insurances to be put into place, the type of insurances to be carried by contractors, and the use of project-specific and owner-controlled policies. We draft policy wordings and integrate these with the insurance obligations set out in the construction contracts, and we carry out risk analyses and audits for insurers. We also represent insurers and their insured entities in the defence of claims and the pursuit of recoveries by way of subrogation.

Global experience
We are recognised not only as experts in our local markets, but we are also acknowledged as one of the leading firms to advise on projects in emerging markets, whether in relation to contract drafting or representing clients in the resolution of disputes. We have been instructed on some of the most challenging construction and engineering projects in Central and South America, Asia, the Middle East and Africa. Our lawyers understand the risks and cultural issues which arise in other jurisdictions, and we have a strong and established network of local lawyers with whom we regularly work.

Experience

ASIA
Non–contentious

  • West Rail Project in Hong Kong. Acted for Kowloon-Canton Railway Corporation (KCRC) (now part of MTR Corporation Limited) in the planning, financing, design and construction of the West Rail Project, a 30.5 kilometre passenger line which connects the North West New Territories of Hong Kong to the urban areas. The project had a capital cost of in excess of HK$46 billion and was completed on schedule and below budget.
  • Asia-World Expo joint venture project. Acted for the Hong Kong SAR Government and The Airport Authority Hong Kong as majority shareholders in the Asia-World Expo joint venture project, for an International Exhibition Centre, with respect to the tendering process and the establishment of the joint venture company. We advised on all project documentation including joint venture agreements, management and operation agreements and construction contracts for this HK$2.4 billion project.
  • Hong Kong International Airport. Acted for Cathay Pacific Airways on a major project providing Hong Kong International Airport with its third cargo terminal.
  • West Kowloon Cultural District Authority. Acted for West Kowloon Cultural District Authority in developing standard form contracts for use in their Project.
  • East Rail Tsim Sha Tsui Extension Project. Acted for Kowloon-Canton Railway Corporation (KCRC) (now part of MTR Corporation Limited) in relation to the East Rail Tsim Sha Tsui Extension Project which extended the existing Hong Kong to Guangzhou "East Rail" line.
  • Central Police Station Revitalization Project. Acted for the Hong Kong Jockey Club Charities Trust on the Central Police Station Revitalization Project.
  • Town planning approval in Hong Kong. Advised Ocean Park Corporation on its tender for the development of hotels, including compliance with conditions of town planning approval in Hong Kong.
  • Multi-purpose projects in Guangdong. Advised a leading Hong Kong charitable organisation on the preparation of construction contract documentation for their multi-purpose projects in Guangdong province, China.
  • PRC projects. Advised a number of leading international construction and engineering consultancy firms on the preparation of their standard form employer/consultant agreement for use in their PRC projects.

Contentious

  • Waste water treatment plant and network in Bangkok. Acted for an international consortium of North West Water International Limited, Omnium de Traitements et de Valorisation, Siam-Syntech Construction Public Company Limited and Sino-Thai Engineering and Construction Company Limited (NOSS Consortium) in arbitration proceedings against a Thai Government Agency in respect of the design and construction of a waste water treatment plant and network in Bangkok.
  • Hong Kong SAR Government. Represented the Civil Engineering and Development Department of the Hong Kong SAR Government in various arbitration proceedings.
  • Hong Kong Housing Authority. Won an action for damages brought by the Hong Kong Housing Authority against B&B Construction, arising out of the short piling at six blocks of flats at Tin Shui Wai. After five years of preparation (and a seven week trial), Judge Reyes awarded damages to the Housing Authority for the sum of HK$553 million. This represents 99.8% of the sum claimed.
  • Hong Kong Government. Advised on a quarry claim against the Hong Kong Government for loss of profit, damages for defective quarrying materials.
  • Quantum meruit claims. Advised Hong Kong Construction Holdings Limited in High Court proceedings brought about by a subcontractor for quantum meruit claims.
  • Major building project in China. Advised an employer on foundation and ground condition issues in relation to a major building project in China. The case relates to defective design and construction of diaphragm walls.
  • Happy Valley Underground Storm Water Storage Scheme. Acted for the Hong Kong Jockey Club in relation to its agreement with the Drainage Services Department of the HKSAR Government in respect of the design and construction of the Happy Valley Underground Storm Water Storage Scheme.
  • Mixed residential/ commercial development in Ho Chi Minh City. Advised a Vietnamese developer on a major contractual dispute involving a FIDIC contract of over US$150 million for the construction of a mixed residential/ commercial development in Ho Chi Minh City.
  • International pipeline contractor. Represented a specialist international pipeline contractor in arbitration proceedings concerning payment and variations in Hong Kong.
  • Hotel resort development in Sanya. Advised a UK based developer on contractor's claims arising out of a hotel resort development in Sanya and advised on issues arising out of the CIETAC arbitration proceedings brought by the contractor.


EUROPE, MIDDLE EAST AND AFRICA
The EMEA practice is led from the London office. Our experience includes:

Non-contentious

  • Iron ore mine development in Mauritania. Advised a Chinese steel producer and its advisers in relation to the deep mine extraction, processing and long term offtake of iron ore. Our work includes advising on a joint venture agreement with the government, drafting EPCM and EPC contracts and negotiating service agreements for the provision of energy and transport.
  • Petrochemical project, Eygpt. The negotiation and drafting of the construction management agreement and EPC contracts (governed by English law) for a project converting naptha gas, via a Cracker complex, into polyethylene and other petrochemical derivatives.
  • Qatari and UK Joint venture. Drafted a suite of contracts for the redevelopment of the Shell centre in London.
  • US government and Afghanistan Ministry of Mines. Advised the US government and Afghanistan Ministry of Mines on the development of the mining industry in Afghanistan (with an estimated resource of up to US$3 trillion), with particular emphasis on the tendering process, model mining agreements and suitability of the mining laws.
  • Gas-storage facility in the UK. Advised a utility on the application of public procurement rules to a 700-million-cubic-metre gas-storage facility in the United Kingdom and the subsequent drafting and negotiation of an EPCM contract.
  • CHP plants in West Africa. Advised a contractor on an EPC contract based on FIDIC for the design and construction of three CHP plants in West Africa.
  • Waste to energy project. Advised the project sponsor and the drafting and negotiation of an EPC contract based on IChemE and related contracts in respect of a £100 million waste to energy project in the United Kingdom.
  • National Oil Company in South America. Advised on a major EPC contract for the expansion and modernisation of a refinery complex for a National Oil Company in South America, with an estimated value of works in excess of US$3 billion, based on the FIDIC Silver Book.
  • Nuclear power plant. Leading on the English law aspects for an international bidder on a project to construct and operate a nuclear power plant comprising two Pressurised Water Reactors with a rating of 1000 MW each, in Eastern Europe.
  • Naptha Cracking Unit. Leading on the project contracts for a major petrochemicals complex in Egypt, advising lender group institutions on a series of EPC and related contracts for a Naptha Cracking Unit plus Polyethylene trains, based on bespoke contract forms and valued in excess of US$3.5 billion.
  • Gold/copper/zinc/silver deposit in Eritrea. Acted for the project sponsors of a €250 million nickel mine project in Turkey and a US$300 million gold/copper/zinc/silver deposit in Eritrea.
  • Baja, Mexico. Acted for the financiers of a US$1.144 billion copper mine project in Baja, Mexico which received the Exploration and Development Funding Award from Mines & Money in 2010.
  • Voskhod nickel mine project. Advised on the project documents for the lenders on the US$120 million Voskhod nickel mine project in Kazakhstan, which was awarded European Mining Deal of the Year in 2006.

Contentious

  • Jordanian chemical production arbitration. Represented a Jordanian owner in a chemical production EPC contract involving ICC arbitration proceedings governed by Jordanian law, with a seat in Amman, with the claim and counterclaim involved exceeding US$400 million. The project at issue suffered from major delays, claims for extensions of time, and change orders totaling more than US$100million. Our client defeated all claims brought against it and prevailed on its counterclaim, obtaining a multi-million dollar interim award.
  • Egypt, ICC Arbitration. A team from our London and Chicago offices represented a joint venture of a British contractor and an Egyptian contractor in ICC arbitration proceedings arising out of defects in a tunnelling project in Egypt. Substantive dispute subject to Egyptian law. Further, ICC arbitration proceedings against the design consultant subject to English law. Dealing with parallel court proceedings commenced in the Egyptian courts and advising on jurisdictional issues. Conducting an appeal against a preliminary award through the Swiss courts.
  • Petrochemical Plant Arbitration. Acted as co-counsel to a substantial US contractor in an international arbitration arising out of a US$5.4 billion petrochemical project in India, being conducted under UNCITRAL rules.
  • LNG facility, South Wales. Represented a US EPC contractor in an LCIA arbitration against its piping and mechanical subcontractor relating to the delays and disruption to the construction of the South Hook LNG facility, the largest LNG re-gasification terminal in Europe and part of Qatargas 2.
  • UNCITRAL arbitration, India. Acted in two related international arbitrations in connection with the construction of an energy project in India. The seat of the arbitration is Mumbai.
  • LNG disputes, Qatar. Represented the US EPC contractor in disputes with the employer arising from a the construction of a LNG related facility in Qatar.
  • Docklands Light Railway, London. Acted for a large UK based international consulting engineer and its professional indemnity insurers defending claims from the main contractor relating to the design of the Docklands Light Railway in London.
  • Wembley Stadium, London. Represented the main contractor and its professional indemnity insurers, pursuing claims valued at approximately £10m against the subcontractors and consultants responsible for the design of the stadium.
  • Mechanical and electrical defects, South East England. Defended a mechanical and electrical contractor and its professional indemnity insurers from a £22m claim relating to the air-conditioning in a large commercial development near London. There were seven parties to the claim, which was in the High Court (TCC) in London.
  • Design and build contractor, structural defects. Acted for the main contractor and its insurers pursuing claims against the subcontractors and consultants following the identification of major structural defects in the car park for an out of town retail centre in the South of England.
  • Cologne Metro, archive collapse. Advised the project insurers following the collapse of the archive building during the construction of the Cologne metro. The losses are estimated to be in excess of €650m.
  • UK adjudication expertise. Acted for owners, contractors, specialist suppliers and designers in a large number of adjudication proceedings arising under the UK's Housing Grants, Construction and Regeneration Act 1996 (as amended), with disputes relating to disputes over extensions of time and valuation of work, loss and expense and design defects and security for payment. Some of our partners also sit as adjudicators.

AMERICAS
Non-contentious

  • New wind farms. Represented Acciona Energy North America in the negotiation and drafting of Engineering and Construction Agreements for the construction of new wind farms in Oklahoma, California, Nova Scotia and New Brunswick, as well as miscellaneous EPC matters, turbine supply agreements and transportation agreements.
  • Major League Soccer stadium in Portland, Oregon. Represented the developer in the drafting and negotiation of a development agreement and design and construction contracts for a Major League Soccer stadium in Portland, Oregon.
  • McCormick Place convention center expansion. Represented the Metropolitan Pier and Exposition Authority in the negotiation and drafting of “first of its kind” design-build contracts for the McCormick Place convention center expansion, totaling approximately $1.7 billion in construction cost. We also negotiated with energy providers to construct and operate a local heating and cooling plant; negotiated and drafted a design-build contract for the development of a $120 million convention center hotel and the related operating and management agreement; and documentation of the design/build agreement for the new 4,000 space parking garage. We also represented the Authority in the structuring and negotiation of an agreement providing for the development, design and construction of a marina adjourning Navy Pier in Chicago, Illinois.
  • Solar silica plants in the Northwest United States. Represented the owner in the negotiation and preparation of EPCM agreements with large international engineering company related to $600 million in major expansion and construction of solar silica plants in the Northwest United States.
  • 215 MW dual-fuel power plant. Represented power producer in the Dominican Republic in negotiation of EPC contract and related documents for construction 215 MW dual-fuel power plant.
  • Canadian oil rig manufacturer. Represent Canadian oil rig manufacturer in negotiation of construction, consulting and day-rate use contracts for the manufacture and operation of fleet of oil rigs in Southwestern United States of two-different design types.
  • Deepwater oil and gas production. Represent designer in negotiation with owner and contractor in preparation and drafting of modification and extension of manufacturing and licensing agreements for construction of offshore spar for deepwater oil and gas production.
  • NorthShore University Health Systems. Represented NorthShore University Health Systems in the negotiation and drafting of multiple construction, design and consulting contracts for hospital and health facility new construction, renovations and expansions.
  • US shopping malls. Represented one of the largest owner of shopping malls in the United States in preparation of all construction, design and consultation form agreements, including EPC, project consultancy, and other form agreements, for purpose of consistency and standardization in construction of shopping malls throughout United States.
  • Canadian oil rig manufacturer. Represented Canadian oil rig manufacturer in negotiation with Conoco-Phillips and preparation of construction, consulting and day-rate use agreements for 10 rigs to be purchased by Conoco-Phillips.
  • Twin Groves Phases I and II in Illinois. Represented Horizon Wind Energy in the negotiation and drafting of agreements for development of Twin Groves Phases I and II in Illinois. This included drafting and negotiating Electrical Balance of Plant and Balance of Plant contracts, drafting and negotiating the Wind Turbine Installation contracts, drafting the Joint Ownership Agreement for the jointly owned transmission line and the Common Use Agreement for the facilities shared between the phases.
  • Power projects in Illinois and Arizona. Represented PPL Global in the negotiation and drafting of multiple construction, EPC, EPCM and consulting contracts for power projects in Illinois and Arizona.
  • La Rabida Children’s Hospital. Represented La Rabida Children’s Hospital in the negotiation and drafting of design and construction contracts for multiple phases of expansions to the hospital.
  • Denver FasTracks projects. Represented lenders in review and negotiation of design-build and other project agreements on the Denver FasTracks projects, a new commuter rail system in Denver, Colorado being constructed through a public-private-partnership model.
  • Jackson Airport. Represented a bidding consortium sponsored by Cintra Concesiones de Infraestructuras de Transporte, S.A. (a division of Ferrovial) in its bid to design/build/finance/maintain/operate a new toll road running between the Jackson Airport and downtown Jackson, Mississippi through a public-private-partnership model.
  • Currituck Sound, North Carolina. Represented a bidding consortium sponsored by Hochtief PPP Solutions North America in its bid to design/build/finance/maintain/operate a new toll bridge that will span the Currituck Sound in the Outer Banks area of North Carolina through a public-private-partnership model.
  • Gas pipeline in Mexico. Represented a Japanese company in its EPC negotiations to build a gas pipeline in Mexico for a Mexican utility.
  • Street Furniture, JC Decaux. Represented the City of Chicago in the negotiation of a 20-year design/build/install/maintain contract relating to thousands of pieces of “street furniture” provided by JCDecaux.
  • Metro railway, Panama City. Represented Japanese member of consortium bidding to construct new metro railway system in Panama City, Panama.

Contentious

  • Cogeneration Plant, The Netherlands. In an ICC arbitration, represented a US engineering firm which provided detail design, construction management and procurement services to the EPC contractor of a cogeneration facility against claims of malpractice, cost overruns and delays.
  • Cogeneration Plant at a US State University. Represented the engineer and worked with University in defending claims by and bringing claims against general contractor on construction of a new cogeneration plant.
  • US electrical Power Plant. Represented engineer in US state court action brought by general contractor relating to the oil to coal conversion a power plant.
  • Ethiopian Sugar Mill and Methanol Plant. Represented the design/builder in a series of UNCITRAL rules arbitrations related to delay and cost impact claims with the owner and subcontractors.
  • Caribbean Deepwater Rig. Represented international engineering and design firm related to dispute over purchase funds and design claims related to offshore, deepwater platform.
  • Indonesian Paper Mill Contracts. Represented Paper Machine supplier and construction engineer with respect to the supply and construction of two paper mill plants in Indonesia. One arbitration proceeded under SIAC rules in Singapore. After the successful resolution of the SIAC arbitration, the other arbitration under ICC Rules was settled under terms favorable to our client.
  • Medical Proton Therapy Center. Represented designer and operator of Proton Therapy centers regarding claims under contract regarding operational standards and alleged design deficiencies on equipment life.
  • Parking Garage Structure Claims. Represented shopping mall owner in regards to various claim against designer, contractor and subcontractors for various parking garage deficiencies and inadequate design and construction claims.
  • Texas petrochemical facility. Represent Contractor in defense of claims by large, international oil company concerning execution of project turnaround on paraxylene plant in the largest, Texas petrochemical facility, when unit was taken offline for emergency shutdown.
  • California refinery. Represent manufacturer of asphalt products of alleged contribution to fire in California refinery related to alleged improper use of products in construction of plant.
  • Delay to construction completion. Represent contractor in seeking to recover excessive costs due to delay in construction completion caused by owner and engineering firm’s delay in completing designs approved for construction.
  • Tail Gas Processing Plants. Represent lender in defense of claims brought by contractor for allegedly causing fabricated default to pursue surety and insurance claims under agreements for tail-gas processing facilities built in three different refineries.
  • Six-mile water tunnel. Represented engineer in malpractice claims brought by a municipal water district relating to the design of a ten foot diameter water tunnel.
  • Western Siberian Coal Mine. Represented a manufacturer of longwall mining equipment in an ICC arbitration in London brought by a Western Siberian coal mine owner over alleged defective design of equipment.
  • Gas Processing Plants. Represent engineering firm against owner for claims arising from alleged delay in design and issuance of drawings for construction of two largest domestic gas processing plants in the Rocky Mountain region of the United States.
  • Environmental and Water Retention Design. Defended designer and contractor in claims for alleged failure to design and construct water retention facility in East Texas refinery.
  • Sports stadium. Represented municipal owner of baseball stadium relating to claims brought by and against contractors and architects for delay and cost overruns. Represented owner in claims against architect and general contractor for inadequate design of topping slab and expansion joints.
  • US city theater district renovation. Represented owner against claims brought by general contractor of complex high rise office tower and historic renovation of connected buildings. Prosecuted owner’s claims for bad design and faulty construction.
  • Publicly Funded Street Projects. Represent metropolitan authority-owner in construction of over $600 million in major metropolitan area roads in claims against contractor and its surety bonding company related to inadequate construction, incomplete construction, and costs to complete projects subject to Federal funding grants.