Martin Downey joined Heller Ehrman in 2004 and is Head of the Asia Dispute Resolution Practice and Co-chair of the International Arbitration and Alternative Dispute Resolution Practice. He is a qualified arbitrator and mediator and was Managing Partner and Head of Dispute Resolution (Asia) for Denton Wilde Sapte prior to joining Heller Ehrman.

Experience

Mr. Downey has extensive experience acting for Hong Kong listed companies, international corporations, Government and quasi-Government bodies in a wide range of disputes including cases before the Privy Council and Court of Final Appeal.

Mr. Downey is a regular speaker concerning litigation and arbitration matters and to those involved in the construction industry including the Hong Kong Institute of Architects, the Hong Kong Institution of Engineers and the Hong Kong Institute of Builders.

Representative Engagements

Martin has advised clients on numerous disputes during his period in Hong Kong which have been concluded by litigation, arbitration or mediation.  He would, however, highlight the following:

• Representing a telecommunications company against the Rating and Valuation Department in rating and Government rent appeals relating to various payphone sites.
• Representing an air cargo terminal operator in its rating appeals against the Rating and Valuation Department in relation to the valuation of SuperTerminal 1 at Chek Lap Kok.
• Advising the Airport Authority in relation to a contractor’s claim (exceeding US$70 million) arising out of delay and disruption to Landside Infrastructure works at Chek Lap Kok Airport.  Advice given in respect of global claims, contractual interpretation, compliance with notice provisions and valuation issues.  The matter settled during a four-week mediation.
• Advising the Airport Authority in relation to Judicial Review proceedings brought by the owners of a steel mill concerning the granting of an environmental permit under the provisions of the Environmental Impact Assessment Ordinance.
• Advising and representing the Airport Authority in respect of arbitration proceedings commenced by the contractor in respect of a Fuel Services Supply System.  The disputes were settled during the arbitration.
• Advising the Hong Kong Housing Authority in respect of Judicial Review proceedings concerning the interpretation of Section 16 of the Housing Ordinance.  This issue affected over 600,000 tenants and involved a total sum in dispute of over HK$1 billion.
• Advising the Hong Kong Government in relation to substantial claims (exceeding US$40 million) brought by a major Japanese contractor (Shimizu Corporation) and six nominated sub-contractors arising out of the extension and refurbishment of the Queen Mary Hospital.  The disputes, which went to arbitration, were complex, involving the following:-
  - delay and disruption issues;
  - costs associated with delay and disruption and the manner in which they were to be valued;
  - global claims and the validity of the same;
  - the method of valuing variations.
  The consolidated arbitrations involved several hearings culminating in a six-week main hearing.  On behalf of the Government, Martin co-ordinated a team of approximately 20 persons including solicitors, Counsel (Richard Fernyhough QC and Teresa Cheng SC), experts and other consultants.  Martin was responsible for briefing the Government on a regular basis.
  The Arbitrator issued eight (8) awards and both parties sought leave to appeal certain awards.  Appeal proceedings were heard in the High Court, Court of Appeal and the Privy Council.  Government was largely successful in these hearings.  
• Advising an individual client in relation to proceedings involving a family inheritance dispute involving family assets located in Hong Kong, China and the United States.  The assets were valued between HK$500 million and HK$1 billion.
  The proceedings involved winding-up proceedings on the "just and equitable" ground relating to three family companies.  Of these, two of the petitions were dealt with following trials in the Companies Court which lasted for six weeks.  These proceedings included contested interlocutory applications and application to all the provisional liquidators and appeals to the Court of Appeal.
  We also advised in respect of two actions under the probate jurisdiction of the High Court seeking to remove the executives and replace them with an independent trust corporation.  There were eight other actions relating to ownership of shares in family companies, including an administration action, actions seeking declarations as to the ownership of shares and dividends and related injunctive relief and an action for defamation.
• Advising a securities company in respect of an attempt by a third party to set aside a corporate acquisition and advising on associated litigation.  The case is ongoing and a strike-out application will be heard in July 2004.  We are also advising on ancillary defamation proceedings.
• Advising several corporations and individuals in respect of ICAC investigations and prosecutions arising under the Prevention of Bribery Ordinance.  Also advising in respect of ancillary proceedings including disciplinary matters arising under various ordinances and regulations.
• Acting for an international consortium of civil engineering contractors in the first bid challenge lodged against a public works department of the Hong Kong Government under the WTO Agreement on Government Procurement relating to the US$500 million Central Reclamation Phase II project.  A hearing took place in May 2003 over a period of three weeks.
• Advising on and conducting two arbitrations on behalf of the Hong Kong Government to resist claims by a major European engineering contractor in respect of land reclamation and river training schemes in the New Territories, Hong Kong.  The contractor's claims were settled in one case and dismissed in the other following an arbitration hearing.
• Advising and representing a major U.S. insurance company in relation to a claim and action brought by an insured alleging misrepresentations made by an agent of the insured which induced the insured into terminating one policy in favour of a new one.  The case involved a mixture of oral and written representations and required evidence to be taken in Singapore and Hong Kong.  The case included a contested interlocutory application concerning the need for and scope of expert evidence and, thereafter, the introduction of limited expert evidence.  The case eventually settled after the commencement of the hearing.
• Advising and representing the Hong Kong Housing Authority in respect of a mediation.  The claim is in excess of HK$100 million and involves extension of time, prolongation costs and related issues.
• Advising the Hong Kong Housing Authority in respect of two disputes arising out of defective piling.  Liaising with client and expert consultants to determine the cause of the defects and advising on relevant legal issues.  The disputes will probably proceed to arbitration.
• Appointed legal assessor to an Arbitrator (an Engineer) in respect of an arbitration arising out of a foundations contract.  Advising the Arbitrator on a number of legal issues but, in particular, the issues of “physical or legal impossibility” and fundamental breach of contract.
• Advising one of Hong Kong’s largest container terminal operators in respect of tunnelling operations below its premises.  Liaising with consultant engineers and client concerning settlement at the site and mitigation measures.  Also advising with regard to statutory compensation and other claims.
• Advising the largest contractor in the Philippines in relation to a number of matters but, in particular, its claim (exceeding US$40 million) arising out of its contract to build sections of the Mass Transit Railway system in Manila. 
• Advising (a U.S. contractor) on a number of projects in Singapore, Malaysia, Thailand and Hong Kong.  In particular, defending a claim in the High Court, Hong Kong arising out of an alleged repudiation and advising Tyco in respect of a claim (US$20 million) arising out of a hotel project in Bangkok. 
• Advising a specialist sub-contractor (Tsien Wui Marble Factory Ltd.) in relation to a HK$40 million claim brought by the developer (Bank of East Asia) in respect of defects to a building designed and constructed in 1982.  The case involved contribution and third party proceedings against the Architects, negligence and limitation issues.  After a three‑week hearing in 1997 the claims against Tsien Wui were dismissed with costs.  The Court of Appeal upheld the decision as did the Court of Final Appeal.  The Judgement has been widely reported.
• Advising a major joint venture company on a substantial tunnelling project for the Hong Kong Government Strategic Sewage Disposal Scheme.  The works comprise the transfer system for sewage disposal from Chai Wan to Kwun Tong and from Tseung Kwan O including the excavation and lining of an 8m diameter tunnel.  The tunnel is 5 km in length set 100m below Hong Kong harbour.  Advice has been given in respect of delays to the project, disruption to the works and in respect of milestones and payments.  Further advice was given in connection with disputes with a domestic sub-contractor to the joint venture.
• Advising and representing a Japanese contractor in an arbitration with a  sub‑contractor arising out of a water treatment plant in Hong Kong.  The arbitration eventually settled shortly before hearing.
• Advising a Japanese contractor over a four-year period in respect of its contract to build Central Station, part of the Hong Kong Mass Transit Railway System.  Advising Aoki on its own claims and delay issues; claims received from sub-contractors and other miscellaneous matters.  Advising in respect of a commercial settlement, drafting and finalising the same.
• Advising a Japanese contractor on loss and expense claims arising on a large commercial development in Hong Kong.  Attending settlement discussions with client over a six-month period and advising on settlement agreements with the developer and sub‑contractors respectively.
• Successfully conducting arbitration proceedings on behalf of a building contractor involving issues of delay, loss and expense, defects and interpretation of the contract documents arising out of the construction of a warehouse in the New Territories.  This case was notable in that the client made a successful application to the High Court to remove the arbitrator for misconducting the proceedings which decision has been reported.  A replacement arbitrator was appointed and the matter concluded expeditiously and on favourable terms for the client.
• Advising a US contractor in respect of tenders for major landfill projects in the New Territories, Hong Kong.  Considering and advising on tender documentation including the conditions of contract and on environmental issues.
• Advising a large Hong Kong private developer on and drafting the tender documentation for a large commercial complex.  Advising on conditions of contract, bonds, guarantees and consultancy agreements.
• Advising various contractors in respect of joint venture/consortium arrangements in relation to the Port and Airport Development Strategy (PADS).  Advising contractors in respect of claims arising out of the Project.
• Advising various clients in respect of the mediation and adjudication of disputes.  Representing clients in several mediations.
• Advising a Japanese contractor in respect of a large claim against a Government body arising out of delay to a reclamation project.  The case is ongoing.
• Advising various corporations and individuals in relation to ICAC investigations and related disciplinary proceedings including Works Bureau striking off matters.
• Advising several Hong Kong developers and contractors in relation to joint venture arrangements in the PRC, drafting/advising on conditions of contract and disputes which have arisen including the termination of contracts.
• Solicitor to the Pneumoconiosis Compensation Fund Board; advising on 400 actions made against the fund.  Also advising on and assisting in the drafting of new legislation and liaising with the Legal Aid Department and the Government draftsman in respect of the same.
• Honorary Legal Adviser to the Hong Kong Rugby Football Union.  Advising on miscellaneous issues but, of significance, advising on and drafting the Sponsorship Agreement for the Hong Kong Rugby Sevens tournament.

Speaking Engagements

• "A Practitioner’s Views on Conducting Effective Arbitration Proceedings", Asian Legal Business Workshop Series 2008 - The Legal Lab, Hong Kong, March 2008.
• "A Practitioner’s Views on Conducting Effective Arbitration Proceedings", Asian Legal Business Workshop Series 2007 - The Legal Lab, Hong Kong, September 2007.
• "Building Contract III Lecture", The Hong Kong Institute of Architects/ Architects Registration Board, Hong Kong, September 2007.
• "The Good, Bad and Ugly of International Arbitration", Asia Pacific Regional Arbitration Group Conference, Hong Kong, December 2006.
• “Big Changes Imminent for Litigation in Hong Kong”, Asian Legal Business - In-House Congress, Hong Kong, September 2006.
• "A Practitioner’s Views on Conducting Effective Arbitration Proceedings", Asian Legal Business Workshop Series 2006 - The Legal Lab, Hong Kong, September 2006.
• "Discovery and the Presentation of Evidence Before the Arbitral Tribunal", Hong Kong International Arbitration Commission: ADR in Asia, Hong Kong September 2006.
• "How Should One Resolve International Commercial Dispute Effectively? - Procedural and Evidentiary Issues before the Arbitral Tribunal", HKIAC and HKCCA, Hong Kong, September 2005.
• "Hong Kong's New Form of Private Contract", Heller Ehrman Seminar, Hong Kong, June 2005.
• "Prosecutions Under the Factories & Industrials Undertakings Ordinance (Cap 59)", Hong Kong Construction Association, May 2005 and China State Construction Engineering Corporation, Hong Kong, July 2005.
• "Contract Management and Claim Assessment", Civil Engineering and Development Department In-House Seminar, Hong Kong, March 2005.
• "Resolving Business Disputes in China: Strategy and Practice Issues", CPR Institute For Dispute Resolution, New York, January 2005.
• "Building Contract III Lecture", The Hong Kong Institute of Architects, Hong Kong, October 2004 .