Construction Law International June 2012

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UPDATES FROM AROUND THE WORLD

New developments in construction law across jurisdictions.

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CASE UPDATES 

New developments in construction law across jurisdictions. Updates from Scotland, France and Slovakia.

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FEATURE
Dispute boards: the Australian experience – Part 1
Doug Jones


Construction projects are traditionally bedevilled by disputes. These have their roots in a variety of unavoidable aspects of major projects that create a fertile soil for conflict. Particular contributory factors include the multitude of parties and the large scale of the workforce involved, the complexity of technical specifications, as well as an exposure to risks outside the control of the parties, such as weather-induced delay.
It is hoped that this article will provide some insight into the Australian experience of dispute boards, beginning with their relatively slow inception and moving to the current growing realisation of their benefits, and thereby contribute to the body of literature that recognises their enormous potential. This article (Part 1) will explore the forms that dispute boards can take and how they have been used in Australia. Part 2, to be published in the September 2012 edition of CLInt, will consider how dispute boards interact with statutory adjudication.

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FEATURE
Decennial liability: the case for harmonisation

Abdulaziz Al-Mulla, James Bremen and Simon Halliwell

This article takes a fresh look at the notion of decennial liability, namely strict liability for latent defects appearing in buildings and civil engineering projects, from both a UK and Middle Eastern perspective. It considers whether a harmonised approach, influenced by the approach taken in civil law jurisdictions, might better serve the construction industry as a whole.

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FEATURE
Contractors’, engineers’ and architects’ duty to advise and decennial liability in civil law countries: highlights of some prevailing principles
Mark Frilet and Laurent Karila


 In France and countries influenced by French law, contractors and design professionals have more extensive duties to their employers than is typical in common law countries. These duties include the duty to advise the employer on potential risks and the contractor’s liability to the employer and others for completed works.

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FEATURE
Bribery Act 2010: what does it mean for the construction industry?
Laura Teodorescu

The Bribery Act 2010 (the ‘Act’), which came into force on 1 July 2011, extends the UK’s anti-bribery and corruption laws. The central changes that have attracted public attention include:
• the way in which corporate hospitality will be treated;
• the strict prohibition on facilitation payments;
• the new corporate offence of failing to prevent bribery; and
• its reach beyond UK shores.
The threat of bribery and corruption is particularly prominent in the construction industry.

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DAVID THOMAS QC
Standard form construction and engineering contracts: current and recent developments


One of the perceived benefits of standard forms of contract is stability. If successful, they are widely used in the industry and will become familiar. Parties and their advisers are used to their features, including general standpoint and tone, physical layout and any individual provisions which need scrutiny and may require amendment. While no contract will be uniformly acclaimed, familiarity leads to acceptance and a sense of ‘comfort’.

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INSIGHT
The penalty doctrine: Andrews v Australia and New Zealand Banking Group Ltd [2011] FCA 1376

Richard Manly SC

On 5 December 2011, Justice Gordon of the Federal Court of Australia delivered an important judgment dealing with the penalty doctrine: Andrews v Australia and New Zealand Banking Group Ltd [2011] FCA 1376. The case is a representative action brought by three applicants on behalf of a much larger group of ANZ Bank customers.

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FROM THE CONSTRUCTION LAW CAMPUS
Emergency arbitrators: can they be useful to the construction industry?

Louise Barrington

Employer about to call your bond? Contractor has downed tools with a looming deadline? Do you need an emergency arbitrator?

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AN EXPERT WRITES...
Delay analysis – a return to common sense?

Bob Breeze

Recent developments in establishing causation in fact.

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SPECIAL REPORT
Welcome to the land down under: the 2012 ICP Working Weekend

Brennan Ong

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