MICHAEL BOWSHER QC

QC BA (Oxon); FCIArb Chartered Arbitrator; CEDR Accredited Mediator
CALL DATE: 1985 SILK: 2006

SUMMARY

Michael Bowsher has been a member of Monckton Chambers since 2001. He has built here a diverse practice covering competition law matters (particularly in litigation), commercial public law and substantial commercial disputes, particularly in construction, technology and public service sectors such as healthcare, transport, waste and utility provision. The largest and fastest growing area of Michael's practice concerns procurement by public bodies and utilities. He is very well known in this field and undertakes a substantial volume of advisory and contentious work covering these matters. His expertise in this area is recognised by a growing body of clients, as attested by the commendations from recent legal directories.

Michael Bowsher has a background in both EU law (having had a number of years' practising in Brussels) and as an advocate in the English courts and international arbitration with many years at one of the leading barristers' chambers specialising in construction disputes. This background allows him to combine his excellent forensic and tactical skills with the ability to relate and deal with a diverse client base.

Michael has continued to be involved in a broad range of arbitration disputes, and is increasingly in demand as an arbitrator and mediator.

FCIArb Chartered Arbitrator
Called to the Bar of Northern Ireland (2000)
Co-Chair of the ICC Task Force on Public Procurement (appointed 2007)
Member of TECSA Panel of Approved Mediators (Technology and Construction Solicitors' Association)
Member of the Bar Council: sits on the European and International Committees

EXAMPLES OF RECENT LITIGATION

Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC)
Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 (Ch)
B2Net Ltd -v- HM Treasury [2010] EWHC 51 (QB); [2010] EuLR 471
European Dynamics SA -v- HM Treasury [2009] EWHC 3419 (TCC); [2010] EuLR 397
JB Leadbitter & Co. Ltd -v- Devon County Council [2009] EWHC 930 (Ch); [2010] EuLR 61
Federal Security Services Ltd -v- Chief Constable for the Police Service of Northern Ireland [2009] NICh3; [2009] EuLR 774
Henry Brothers -v- DENI [2008] NIQB 105; [2009] BLR 174 & [2008] NIQB 153; [2009] BLR 118 - High court trial concerning procurement of multi-million pound schools improvement framework
McLaughlin & Harvey Ltd -v- DFP [2008] NIQB 25, [2008] NIQB 91 & [2008] NIQB 122 - also reported at [2008] BLR 603 & [2009] BLR 104 - High court trial of procurement of £800 million public sector construction framework
Rapture TV -v- Ofcom and Others [2008] CAT 14 - CAT appeal from Ofcom determination
Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179; [2008] EuLR 191 & [2008] EWHC 122 (Ch); [2008] EuLR 564- High court proceedings concerning national framework for procurement of firefighters' uniforms - two judgments already reported.
Rapiscan Systems Ltd v HMRC [2006] EWHC 2067 (QB) - Procurement of contract for scanning equipment at docks
West Ham United -v- MSI & Just Sports Inc [2006]
Healthcare at Home -v- Genzyme [2006] CAT 30 - Follow-on damages claim after Article 82 liability established against Genzyme
Prater Ltd -v- Office of Fair Trading [2006] CAT 11 - CAT appeal from OFT decision

COMMERCIAL/ARBITRATION

Michael is active in a wide range of commercial matters, particularly in information technology, communication and financial matters but also concerning sports-related issues. Most of these matters involve resolution in either arbitration, mediation or some other form of private adjudication. Michael is currently involved in a number of disputes concerning the operation of long term public sector agreements.

Michael has represented clients in well over 50 commercial arbitrations and has been appointed as arbitrator in a range of disputes; he has acted as counsel in a range of international arbitrations under ICC, LCIA and AAA rules. Some of these matters are referred to below.

Michael has been accredited by CEDR as mediator and is a member of the panel of mediators appointed by the Technology and Construction Solicitors' Association (http://www.tecsa.org.uk/).

Recent litigation includes:

West Ham United -v- MSI & Just Sports Inc [2006]

Highlights in arbitration include:

Counsel in numerous arbitrations (both domestic and international) in construction and IT cases. Recent cases include an ICC arbitration in Geneva regarding construction of a power station and in a AAA arbitration regarding a software development project.
Leading counsel for an East European chemical company in a dispute with other international parties.
Appeared as counsel in disputes following construction of Karachi Airport New Terminal, sections of the Singapore Mass Rapid Transit system, the European Southern Observatory in Chile, and dams, power and petrochemical projects worldwide.
Appeared in many reported decisions regarding enforcement of construction adjudication decisions, including the first such decision - Macob v Morrison up to a decision reported on lawtel in November 2004.
Involved in a range of other dispute resolution processes including a variety of mediations.
Specialises particularly in EC procurement law in various tender disputes and competition and state aid issues arising out of construction projects, in particular in the context of complex PFI and PPP type projects.
Michael has also been involved in litigation and statutory claims for compensation covering land fill, contaminated land, waste management, sewers, pipes and drains.

COMPETITION AND STATE AID LAW

Michael's competition practice has covered proceedings involving the EC Commission, CFI, OFT, CAT and Competition Commission. He has covered a wide range of sectors, but his current case load is particularly focused in the health and medical, construction, IT, transport. He is particularly involved in competition/state aid issues in the context of major IT and infrastructure projects.

Michael is involved in a number of claims for damages for breach of competition law; he is instructed as leading counsel for the Claimant in the claim recently commenced by 2 Travel against Cardiff Buses for damages following on from the OFT decision on Chapter II abuse, and has previously acted in various disputes concerning internet business and registrations
He has been involved in a number of claims for injunctive and similar relief arising out of competition law
Michael is involved in a number of claims for damages for breach of competition law; he is instructed as leading counsel for the Claimant in the claim recently commenced by 2 Travel against Cardiff Buses for damages following on from the OFT decision on Chapter II abuse.
Michael advised a number of parties in OFT investigations concerning bid-rigging allegations in the construction industry (and has appeared in CAT proceedings concerning similar matters)
He has been involved in mediation as counsel and as mediator in various disputes arising out of competition law issues.
He has acted as counsel in High Court litigation in successfully defending a motor vehicle manufacturer against a competition law-based claim
He has acted as counsel for a local authority in successfully defending a challenge to redevelopment plans based on state aid and local government law arguments and is continuing to act and advise upon various state aid matters.
He has led teams making UK merger notifications, making and responding to complaints to OFT and EC Commission and has assisted parties seeking to make or avoid the need for notification of state aid

Recent reported cases include:

Rapture TV -v- Ofcom and Others [2008] CAT 14 - CAT appeal from Ofcom determination
Healthcare at Home -v- Genzyme [2006] CAT 30 - Follow-on damages claim after Article 82 liability established against Genzyme
Prater Ltd -v- Office of Fair Trading [2006] CAT 11 - CAT appeal from OFT decision
SERE Holdings Ltd v Volkswagen Group UK Ltd [2004] All ER (D) 76

CONSTRUCTION AND TECHNOLOGY LAW

Michael continues to act as counsel in a broad range of construction and engineering disputes, including most recently a delay claim in the Technology and Construction Court on behalf of a piling sub-contractor.

Counsel in various claims in the Technology and Construction Court, numerous arbitrations (both domestic and international) in construction and IT cases including most recent successes in an ICC arbitration in Geneva regarding construction of a power station and in a AAA arbitration regarding a software development project
Involved in a number of court challenges to arbitration procedures
Michael is on the TECSA panel of approved mediators (Technology and Construction Solicitors Association)
Michael has appeared as counsel in arbitrations following construction of Karachi Airport New Terminal, sections of the Singapore Mass Rapid Transit system, the European Southern Observatory in Chile, and dams, power and petrochemical projects worldwide
Michael appeared in many of the reported decisions regarding enforcement of adjudication decisions, including the first such decision - Macob v Morrison. Involved in a range of other dispute resolution processes including a variety of mediations
Michael has also been involved in litigation and statutory claims for compensation covering land fill, contaminated land, waste management, sewers, pipes and drains.

EU/PROCUREMENT

Michael has represented many clients in injunction proceedings and claims for damages for breach of procurement rules. He has appeared in many of the major UK procurement cases over the last decade, including:

Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC)
Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 (Ch)
Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] 2 CMLR 48
Croft House Care Ltd v Durham CC [2010] EWHC 909 (TCC)
Community Care North East (A Partnership) v Durham CC [2010] EWHC 959 (QB)
B2Net Ltd -v- HM Treasury [2010] EWHC 51 (QB); [2010] EuLR 471
European Dynamics SA -v- HM Treasury [2009] EWHC 3419 (TCC); [2010] EuLR 397
JB Leadbitter & Co. Ltd -v- Devon County Council [2009] EWHC 930 (Ch); [2010] EuLR 61
Amaryllis Ltd -v- HM Treasury (OGCBuying Solutions) [2009] EWHC 962 (TCC); [2010] EuLR 85 & No.2 [2009] EWHC 1666 (TCC); [2010] EuLR 152
Federal Security Services Ltd -v- Chief Constable for the Police Service of Northern Ireland [2009] NICh3; [2009] EuLR 774
Henry Brothers -v- DENI [2008] NIQB 105; [2009] BLR 174 & [2008] NIQB 153; [2009] BLR 118 - High court trial concerning procurement of multi-million pound schools improvement framework
McLaughlin & Harvey Ltd -v- DFP [2008] NIQB 25, [2008] NIQB 91 & [2008] NIQB 122 - also reported at [2008] BLR 603 & [2009] BLR 104 - High court trial of procurement of £800 million public sector construction framework
McConnell Archive Storage Ltd v Belfast City Council [2008] NICh 3; [2008] EuLR 549 Procurement of contract for removal and storage of all city records during refurbishment of City Hall
Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179; [2008] EuLR 191 & [2008] EWHC 122 (Ch); [2008] EuLR 564- High court proceedings concerning national framework for procurement of firefighters' uniforms - two judgments already reported.
Rapiscan Systems Ltd v HMRC [2006] EWHC 2067 (QB) - Procurement of contract for scanning equipment at docks
BFS Food Group Ltd v Secretary of State for Defence & Purple Food Services [2006] EWHC 1513 (Ch); [2006] All ER (D) 274 (Jun) - Procurement of worldwide contract for armed forces' food
Devilbiss Medequip Ltd. v NHS Purchasing and Supply Agency [2005] EWHC 1757 (Ch); [2006] EuLR 346 - Procurement of contract for domiciliary oxygen
Denfleet International Ltd v NHS Purchasing and Supply Agency [2005] EuLR 526 - Procurement by NHS of schizophrenia medications
Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (No.2) (2000) 72 ConLR 21
Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons (1999) 67 ConLR 1.

Michael is also involved in a large number of matters calling for advice in planning the procurement of major construction and IT projects. He is also heavily involved in advising clients how best to respond to challenging situations evolving during the tender process.

In 2007 Michael was appointed Vice-Chair of the ICC Task Force on Public Procurement.

OTHER EU ISSUES, IN PARTICULAR BIOSCIENCES

Appeared in a number of proceedings concerning the grant or withdrawal of authorisations for the marketing and sale of pesticide products
Acted for apharmaceutical company resisting (successfully) the attempt by a competitor to obtain judicial review of its medicines authorisation
Involved in ongoing matters concerning food regulation requiring lobbying for amendments to EU food legislation
Acted in reference to ECJ concerning validity of EU Regulation concerning compensation for air passengers R ((1) International Air Transport Association (2) European Low Fares Airline Association) v Department of Transport [2004] EuLR 998

PUBLIC LAW/REGULATORY

Michael is involved in a wide range of public law and regulatory matters including regulation of public contracting and tendering issues (see EU/Procurement and Construction) and biosciences and food regulation (see Other EU). Recent matters have concerned:

Local government law issues regarding provision of supplies, services, undertaking infrastructure projects, and sale and development of land
Regulation of utilities in England & Wales and in Northern Ireland on financial, market access and a range of other regulatory issues
Environmental regulation, in particular affecting the waste management and water industries
The new regime for regulation of the security industry
Legal aid regulation

ADDITIONAL INFORMATION

Michael Bowsher's experience in one of the pre-eminent EU law practices in Brussels, and subsequently in one of the leading sets of chambers specialising in construction disputes allows him to combine his excellent forensic and tactical skills with the ability to relate and deal with continental, UK and North American clients and understand the demands of those instructing. Since joining Monckton Chambers in 2001 Michael has been able to build on his previous experience, in particular in international arbitration. His diverse practice includes a wide range of competition law work, public law as well as heavy commercial, construction and technology disputes. He continues to be involved in arbitration and other forms of dispute resolution as counsel, arbitrator, mediator and so forth.

The largest and fastest growing area of Michael's practice concerns procurement by public bodies and utilities. He has a substantial volume of advisory and contentious work and his expertise in this area is recognised by a growing body of clients, as attested by the commendations from recent legal directories.

PUBLICATIONS AND CONFERENCES

Michael has contributed articles to various publications, in particular on procurement and competition law in the construction industry. He speaks frequently on various topics covered by his practice and has been a driving force behind the organisation of the Annual EU Procurement Conferences arranged by White Paper. During 2007 he has appeared as Chair or as an expert speaker for IBC, LexisNexis, CLT and MBL as well as White Paper.

Key speeches have included the following:

'Applying the EU Procurement Rules to Major Projects ~ Putting eight client driven questions to the regulators for a clear answer', White Paper, September 2007
'Application of EU procurement law to the procurement of contracts for London Olympics 2012', King's College London conference, July 2006
'The Challenges and Opportunities for Arbitrators presented by Civil and Criminal Laws concerning Competition, Public Tendering and the Regulation of Utilities', Chartered Institute of Arbitrators July 2006; similar talk delivered in June 2006 to the British Institute of International and Comparative Law
'Procurement Law Compliance in the UK', Union des Avocats Européens, November 2005
Lectured on competition litigation, procurement and state aid law at BIICL course for national judges in Brussels, March 2005
Lectured on various aspects of Singapore competition law at the annual LexisNexis Singapore Competition conferences in 2005, 2006 and 2007

Michael writes in a number of academic and non-academic publications, including 'Building' magazine. Publications include:

'Damages for Breach of the EC Public Procurement Rules in the United Kingdom' (with Philip Moser) (2006) PPLR 195
'Arbitration and Competition' in 'Competition Litigation in the UK' ed. Ward & Smith (2005)
'Case C-448/01, EVN AG & Wienstrom GmbH v Austria - the European Court of Justice explains Transparency and finds limits to the use of procurement as a tool of environmental policy' [2004] Intl Const Law Rev
'EC Procurement Law and Change during the Tender or the Contract' [2003] Intl Const Law Rev 154