2032 and Beyond: Dispute Resilience for Brisbane’s Olympic Legacy (Part 2)

Andrew McCormack:

Hello and welcome to Ashurst Business Agenda. This is the latest episode of 2032 and Beyond, our podcast series focusing on the Brisbane 2032 Olympic and Paralympic Games. I'm Andrew McCormack, a partner in Ashurst's Projects and energy transition team. In this podcast series, we're taking a detailed look at a range of important issues relevant to the preparations for delivery of and legacy flowing from the 2032 games.

In this 2nd and final part of our episode on building dispute resilience for Brisbane 2032, we will be looking at minimising the impact of disputes, legacy in the context of dispute management and the importance of managing disputes. Mel if I can come to you first are there ways to minimise the impact of disputes by making a contract dispute resilience? And if so, what role might alternative dispute resolution play in that?

Melissa Yeo:

From what Mike was just saying, and as we've covered in the discussion, look, I think when you have projects of this nature, the stakes are very large, and so too are the dollars. And really, what Mike was touching on, and again, I think that it's exactly right, is front-loading that investment. So front-loading your investment in your teams, in your technology and in your processes, that's going to be a very key element to making everything dispute resilient.

In terms of the role that alternative dispute resolution might play, that's a really interesting one, particularly in the game setting. Now, one of the features of the games, many people might be aware, is sustainability. And alternative dispute resolution offers some unique opportunities to contribute to the sustainability piece for the games. And one of the things to bear in mind is, for example, with arbitration, there are rules that have been introduced, for example by ACICA that are directed at sustainability and green protocols. There is a green arbitration pledge and template procedural order that provides a framework for parties to contribute to the sustainability of disputes. And these can be agreed at the outset.

And so that's really something that most people might not consider but could actually go some way and be an interesting feature as to how we contribute to the sustainability of the games. One of the great features of alternative dispute resolution is flexibility, and that flexibility can include anything from your decision maker of course, but also in terms of the process. And that lends itself to quick resolution, expedited resolution if that is something that the parties are able to agree.

Whereas typically litigation can take many, many years, particularly on complex construction disputes. Alternative dispute resolution really does have a place to afford parties flexibility and speed. I think, as I touched on before, one of the ways that you can assist to make a contract dispute resilient is by ensuring that you have crystal clear terms that govern how disputes are to be resolved between the parties.

The other thing that you want to think about and ensure is in place is that you have consistent dispute resolution provisions across your contracts in the suite. So what I mean by that is where, say for example, a principal and a contractor, you have an arbitration clause, you're going to want to make sure that your contracts upstream and downstream for that also have arbitration clauses. Alternatively, if you've decided on litigation, it is generally advisable to ensure that you have consistent dispute provisions and you consistently choose litigation across that suite of contracts. This can avoid difficulties where, for example, in a large dispute, you might like to join someone to proceedings and you find that you're unable to because you have an arbitration agreement.

One of the really important things to consider at the outset is ensuring that your dispute resolution clause is actually fit for purpose. You should never just adopt the boilerplate from earlier contracts because what you might find, and certainly what I have often found in my experience, is that those provisions nominate bodies to appoint an arbitrator, for example, and those bodies either don't exist anymore or they don't perform that function. I've also seen it in many cases where certain rules are prescribed that don't exist anymore or that are out of date.

And so really, it's important to consider, well, what does our dispute resolution clause say? Is it fit for purpose? Are the things that we are prescribing in this clause actually possible? Or is this going to lead to confusion down the track when we end up in a dispute? And then we might end up in a dispute about our dispute clause and how we're going to resolve the dispute. Now, certainly that is something to be avoided.

Now, one form of alternative dispute resolution that I'll touch on in more detail is dispute resolution boards. Now, for those who aren't familiar with dispute resolution boards, they are really just another form of alternative dispute resolution that are flexible. They often involve a panel of three, and you can have, for example, a legally trained panel member. You can have a quantity surveyor, an engineer, for example, but you can make up that panel with whatever expertise the parties agree that is suitable for the project. That dispute resolution board or dispute avoidance board, as they're often called, can be baked in at the front end to the contract. So you can have them as a feature. And what they do is proactively keep across the development of the project, and look to address issues that arise at an early stage and help the parties to resolve them before they become a full-blown dispute.

Equally, dispute resolution boards can be agreed upon later in time after the contract's been executed and after a dispute has arisen. It might be the mechanism that parties choose to resolve their dispute after it has arisen. And again, it does provide flexibility in terms of who the parties would like to have on that panel, and it can allow you to have a mix of expertise that are going to be helpful when considering the issues that have arisen on a particular project.

Andrew McCormack:

Some really excellent guidance there, Mel. Thank you very much for that. And perhaps Mike, to finish, I'll come back to you. There's so much discussion about Brisbane's legacy post the Games. What does legacy mean in the context of dispute management?

Michael Duggan:

But we've talked about legacy in past episodes, Andrew, and one of the things I think, well, the only thing we really landed on is that it has many different meanings across many different contexts and stakeholder groups. So look, this is going to be my take on it from a disputes risk management angle, but I think legacy for the games is about leaving behind capability and confidence and not just bricks and mortar. So what if Brisbane 2032 can establish a culture where issues are surfaced early, facts are shared transparently and solutions are brokered collaboratively?

This approach might become business as usual for major projects in Queensland long after the Olympic flame is extinguished. And I think that type of catalystic development of legacy from a disputes and a risk perspective would be absolutely incredible and have many, many years of residual impact for all of those projects, for many more generations to come.

From a purely economic perspective, I think things like efficient dispute resolution projects help to protect the public purse. Every dollar not spent on legal fees or delays, delay damages is a dollar that can be reinvested into community facilities or transport upgrades, those things that will be future legacy projects. Socially, a well-run games that avoids the headlines of spiraling costs, like many of our state and nation building projects already, helps to reinforce public trust in the government and industry. And those are absolute essentials when the next wave of infrastructure is tabled.

And environmentally swift resolution of those sustainability related disputes that both Mel and I have discussed ensures that things like carbon waste and biodiversity commitments are actually met rather than being deferred to the balancing ledger of legacy projects that may never actually materialize. Some of our future generations will get to feast on the spoils of an incredibly sustainable Southeast Queensland, which I think would be a massive legacy. So Brisbane really does have the ability and the chance to set a new benchmark for host cities. Mel spoke about dispute boards.

I think another area that they should have a significant focus on are those things that take into account new technologies like artificial intelligence and data management. So things like digital issue tracking from day one and the use of AI to help manage some of those risks and issues should be a significant thing that all of the stakeholders that are involved in the games should be focused on utilizing and leveraging. If we can demonstrate for Brisbane 2032 that proactive dispute management is an enabler of program certainty rather than a grudging cost, I think future organizing committees are going to be more likely to adopt a model like what we've been able to deliver here in Southeast Queensland.

I think my parting recommendation to all the stakeholders is really simple. Treat dispute resilience as a design criterion the same way you would structural integrity or accessibility of a brand new stadium. Build into the contracts, build it into the culture, and build it into the systems now, and you'll be able to see the benefits that will echo well beyond 2032.

Melissa Yeo:

One of the things that I shared with Mike on another day was the fact that my daughter recently started springboard diving at the Chandler Sports Center. And so my husband and I head over there on Friday nights to watch her do her jumps; that's what she calls them. And happily, Chandler I saw is actually an official Olympic training facility, which is quite exciting. My daughter's currently six years old, and the thing that I find quite exciting is that by the time the games roll around in 2032, she should just be old enough to potentially qualify, assuming all goes well, for the games.

Now, look, I'm certainly not being crazy with my expectations. I suppose what I find really exciting about the games is the fact that all of this infrastructure that we're going to build around Brisbane is going to shape the futures of our children. Our children are going to be able to train at these facilities. Our children are going to be able to just go and have fun at these facilities, and that's why I'm really excited to be a part of it insofar as I can. Now, whether that's being a mom cheering along the sidelines, just being a spectator watching, or helping clients try to navigate disputes so that really, at the end of the day, what we do end up with for Brisbane is a positive games legacy.

Andrew McCormack:

Well, thanks Mike, and thank you to Mel for sharing all of those insights. It's clear that strategic action to build dispute resilience will go a long way to ensuring that the Brisbane Games legacy is not only delivered successfully, but also stands as a model for future infrastructure projects.

Thank you for listening to Ashurst's Business Agenda and this latest episode in our 2032 and Beyond podcast series. To listen to previous episodes in this series and subscribe for future episodes, check out Apple Podcasts, Spotify, or wherever you get your podcasts. While you're there, please feel free to leave us a rating or a review, but for now, I've been your host, Andrew McCormack. Thanks again for listening and goodbye.

This podcast contains general information and does not constitute legal advice. Ashurst is not a sponsor, licensee, or promotional partner of the Brisbane 2032 Olympic and Paralympic Games, the Olympic movement, nor any Olympic body, event, team, or athlete. Nothing in this podcast is intended to suggest any such sponsorship, license or promotional affiliation.