In the period, 1994-2000 Trett Consulting was involved in over forty disputes of which ten were subjects for arbitration , [seven of which were settled prior to trial and three were satisfactorily settled by arbitration.] Only one was the subject of litigation, the remainder were commercial claims settled satisfactorily without the need for litigation or arbitration.
Trett Consulting's current workload involves fifteen major accounts in Holland, one in Nigeria and two in the UK. These cases involve contract administration, preparation of contract terms and conditions, Joint venture formulation, acquisition and auditing. In the arena of disputes, three cases are undergoing arbitration and two are in litigation. A further two are the subject of mediation.

The industry sectors we have workerd in include, Shipping, Offshore & Marine, Petrochemical, Pharmaceutical, Building and Civil Engineering [Tunnels, Railways, Bridges], Paper Mills, Food and Fertilizer Processing, Water Treatment and Defence contracts. We have extensive experience in Boiler and Turbine installations, in the Power, Gas and Incinerator sectors and developments in Biomass.

The work for our European clients has encompassed many major projects in the Netherlands and in other parts of the world the statistics are:-

Australia [1], Belgium [3], Bratislava [1], Brazil [1], France[1], Germany [3], India[2], Indonesia[1], Italy [1], Nigeria[1], Norway[1], Poland [1], Spain [1], Sweden [2], Turkey [2], UAE [2] and UK [4]

Our work has brought us into contact with lawyers from the USA, UK, and Sweden as well as numerous legal practices in Holland. We have dealt extensively with the Dutch Civil Code and addressed complicated issues such as sub-contracts in England under Dutch Law and contracts in Holland under English law. Other projects have involved the laws of, Belgium, France, England & Wales, Scotland, Switzerland, Germany, Sweden, Turkey and Nigeria.

What has Trett learned from Europe and Holland in particular? The short answer is a great deal, some snapshots are:-

In only five of over fifty disputes covered by arbitration, litigation, mediation and negotiation in the past seven years has there been any heavyweight reliance on points of law. With one exception, these have been minor or procedural in context in the final outcome. The Dutch arbitrators have an uncanny sense of fair play and display considerable common sense.

At least a general understanding is required of the various codified legal systems of Europe as well as the precedence and rigidity of the US/UK systems. There is at times an abhorrence in the European construction industry for what is commonly termed the "Anglo-Saxon" methods of dispute resolution. We have thus learned to be flexible in approach and not to fix our efforts and ideas on any one system.

Many large contracts, especially those receiving funding from Brussels and involving international contractors in consortium, are governed by the English language. The command of language especially in the Netherlands is second to none, yet we have learned that the literal translations of words such as "delivery" [ Dutch -"levering"] and "takeover" [ Dutch- "overname"] are interpreted in contractual terms in fundamentally different ways. Basically one culture, includes commissioning and testing, whereas the other excludes such activities.

Such differences of understanding abound in consortium agreements, especially when things go wrong, thus requiring extreme clarity and extra definition in their preparation. Two UK majors delayed their plans for establishing consortia in Europe after consulting Trett. Both had the similar comments viz:-

Our marketing people do not possess Trett Consulting's local knowledge of contracting commercial or fiscal matters. Our existing plans if pursued would have led us eventually into conflict."

The Dutch system of arbitration reflects Dutch culture. It is anything but adversarial and is generally reasonable in approach. It can and will entertain global claims and always provided that the case is fully and properly prepared and further that it is easy to read a resolution will be forthcoming in a reasonable time. Our opinion is that it will take considerable time for this sytem to be altered.

It is frequently stated that arbitration is cumbersome, protracted and expensive and commercial organisations are therefore, seriously considering ADR for the settlement of disputes. This process is attractive when it works and is reputed to be cheaper and quicker. Here in Holland, however, our observations show that ADR processes sometimes give more weight to the negotiating power of the protagonists than the rights and wrongs of a dispute. Further there is not much of a track record and a great deal of education is needed before ADR revolutionises dispute resolution in the Netherlands.

The cost of arbitration can be high but the experts' fee structures are not the cause, they are an effect. UK engineers need to ensure that the best UK practices are understood in the EC, but should be ready to learn about the construction practices in mainland Europe and to consider adoption of the better ones for use in the UK.

Sadly, Barry Kirby has passed away since writing this article. Any queries regarding this article or our operations in the Netherlands should be directed towards John Lott of our Netherlands office