Joseph Dalby

Date of call: 1988

Career Qualifications

Bar: Called to the Bar of England and Wales, Middle Temple,1988
Called to the Bar of Ireland, 1993

Academic: LL.B. (Honours), London South Bank University, 1987
Licence spéciale en droit européen, Université Libre de Bruxelles, 1996

I have been in practice for over twenty years working in the areas of public, commercial and chancery, with cross-over and related disciplines. International and cross-border matters are a major part of my workload. I have practiced out of Brussels and worked extensively on EU Technical Aid projects in Central and Eastern Europe and the Middle East implementing the EU Acquis. I hold a degree in law and a Masters Degree in European Law (from Universite Libre de Bruxelles).

I am also admitted to practice out of the Law Library, Dublin, where I regularly appear and advises on Irish public and commercial law.

General Overview

Civil and Commercial: Contracts and commercial transactions, Sale of goods and services, terms of trade, Reservation of title, mergers/acquisitions, Joint ventures and collaboration, Intellectual property rights protection and enforcement, Debt recovery and defence,

Chancery: Company and insolvency, Corporate structures and shareholding, pensions, trusts and land ownership and rights, performance bonds and guarantees

Construction and PPP: Delay/disruption, negligence, quantum meruit claims, planning/ procurement/concessions issues, professional negligence

Public procurement: all aspects of public contracts, procurement procedures and challenges

Competition and regulatory: EU, UK and Irish law, restrictive agreements and practices, vertical arrangements,

Technology: Domain names and e-commerce, data and IP/IT contracts & disputes, computer/internet misuse

Public Law: judicial Review, local government, statutory interpretation, international conventions,

Environment: EU acquis, Aarhus Convention, EU Renewable energy policy

Public Contracts, outsourcing, concessions and licensing, and competitive tendering

Wide specialisation developed over 15 years in procurement/public contracts, outsourcing through competitive tendering, and the award of concessions and licences/agencies, that brings together commercial, public and competition legal disciplines.

Able to advise on English/UK, EU and Irish law, and on the competitive tendering regimes of international organisations. Experience is comprehensive as it is varied, in relation to policy, procedures, disputes and judicial review.

• preparing and/or reviewing documentation generated by public/private buyer as part of procurement processes, including tender information packages and tender documentation;

• advising on and or monitoring the conduct of procurement/outsourcing processes and assisting with tender evaluation;

• framing detailed complaints to the European Commission, European Ombudsman, or competition authorities

• providing detailed advice on procurement issues in a range of PPP and other projects, including on airports, roads, bridges, national stadium, purchase of aircraft, waste facilities and the energy sector;

• reviewing or advising on the validity of arrangements where Public Procurement Rules have been breached; and

• advising and representing in the enforcement or defence of remedies before High Court and European Court of Justice.

• prosecuting or defending construction disputes in respect of government contracts;

• judicial review and claims for damages;

• prosecuting claims in EU-procurement contracts or EU-funded technical assistance projects.

• Advising on the EU's Financial Regulation, PRAG and FWC contracts.

I advise at all stages of the procurement process and for the principal participants including policy makers, regulators, buyers, suppliers, and reviewers.

Indicative List of bespoke public procurement work

Association of law firms - various and frequent procurement matters - advice, guidance and prognosis on developments in EU and international public procurement

Outsourcing of administration of social security to private-sector operated agency - selection of tender procedure - pre-qualification - tenders from consortia - mid-process changes in membership of consortia - (specifically) advising on continuing or abandoning tender - liability - consultation with European Commission

Hospital trust - various procurement matters - services and supplies - negotiated or restricted procedures - contract notices

Construction industry association - partnering in the construction industry - procurement implications

Private sector "utility" - public sector function - exclusive rights - application of public procurement rules - devising the award process - expressions of interest

Market entrant - public sector regulator - licences to trade - cross-referencing principles of public procurement to award process

Tenderer/Consortium - large IT infrastructure project - non-listed public sector function/utility - long pre-tendering phase - choice of procedure (if any) - application of procurement rules - analysis of contract notice - lengthy tendering phase - compliance with specifications

Service provider - public sector leisure utility - design. build and operate - various procurement matters - use of special purpose vehicles as government agency - retrospective implications

Unsuccessful tenderer - Services contract - re-appraisal of specification - FOI application

Contracting authority - health and safety - services contract - award thresholds

Contractor - energy provider - network build contract - negotiated procedure

Successful tenderer - annulment of award - international arbitration

Contracting Authority — Change of contractor forced by merger and direction of regulator — awarding new contract — negotiated procedure — legal difficulties

Contracting authority — choice of procedure — negotiated procedure — only one candidate capable of performing contract

Contracting authority — liquidation of contractor — completion of contract works — new contract — requirements

Contractor — breach of contract claim — application of tender documentation on interpretation of contract

Contracting authority and private partners — application of procurement law to planning law — application of Commune de Roanne case

Tenderer — challenge — evaluation of tender — non-award of contract

Tenderer — challenge — evaluation criteria — evaluation of tender — framework agreement - Remedies Directive -

Tenderer — challenge — choice of procedure — time and turnover

Tenderer — challenge — categorisation of contract — Remedies Directive

Tenderer — judicial review — application of national guidelines — time

Tenderer — breach of statutory duty — breach of procurement law — non-selection of tenderer

Contracting authority — application of Directives to data licence and IT platform.

Tenderer — Procurement challenge - Declaration of ineffectiveness

Contractor — Construction arbitration — public contract — procurement aspects

Contracting Authority — procurement challenge — review of process — annulment of tender

International consulting activities

• Macedonia: Drafting primary and secondary procurement laws

• Syria: Advising on joint venture and BOT concessions contract

• Kosovo: Drafting public procurement legislation

• Montenegro: Drafting public procurement legislation

• Moldova: Guidelines on reforming public procurement regime.

Appointments

• Legal Adviser, Technical Assistance Consultants United (TACU) (pro bono)

• Domain Name Panellist, Czech Arbitration Court 2005 to date

• Domain Name Panellist, WIPO Arbitration Centre 2004 to date

• Lecturer, Southampton Solent University 1996 to 1999

• External Academic Tutor, EU Law, University of Glamorgan 1997 to 1999

• Case Headnoter for Common Market Law Reports 1995 to 1997

• Legal Correspondent, The European, fortnightly column 1993 to 1997

Publications

• EU law for the Construction Industry, (Blackwell, 1998, 253pp)

• "Remedies for Infringement of the Government Procurement Agreement" in Public Procurement in Europe: Enforcement and Remedies, ed Tyrrell and Bedford, Butterworths, 1997

• Complaints to the Commission, Jnl of the Law Society of Scotland 38/10 397

• Liabilities and Warranties in the Construction Industry (1994) 10 Const.L.J 104

• Notice to national Courts on the Application of Articles 85 and 86 (1993) 137 SJ 325

• Advanced Deposits & the Package Travel Directive - Travel Law Journal [1996] TLJ 11

• Newsletter: Community NewsScan Service, Monthly monitor on European law 1993 to 1997

• The Future of Internet Regulation, inside.ie e-zine April 2002

• A New Remedies Directive, European PPP Forum, EIPA June 2006

• Challenging Times — Remedies in Public Procurement, (2009) 1 IBLQ 5

• Setting Off Summary Judgement (2009) 3 IBLQ 1

• A Performance Bond, Deconstructed (2010) 11 BLI 105

Clerks Email

Practice areas

t 020 7404 5252
clerks@4-5.co.uk

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