Construction Law International October 2012

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UPDATES FROM AROUND THE WORLD

New developments in construction law across jurisdictions. Updates from the European Union.

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CASE UPDATES 

New developments in construction law across jurisdictions. Updates from England.

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FEATURE
Enforcement of binding but not final DAB decisions: the impact of ICC Case 16948/GZ
David Brown and Oana Soimulescu


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
Dispute boards: the Australian experience – Part 2

Doug Jones

As discussed in Part 1 of this article, published in the June 2012 edition of CLInt, adjudication in Australia may be initiated in exercise of rights arising out of contract, or conferred by statute. A similar state of affairs exists in the United Kingdom. While arguments have been circulated to the effect that the existence of a statutory scheme forecloses the use of contractual adjudication, it is the view of the author that in Australia, their coexistence is not problematic. Dispute Adjudication Boards (DABs) are perfectly compatible with the statutory regime and have significant utility. This Part 2 will describe the statutory schemes in both Australia and the United Kingdom and draw attention to certain important differences between the two. Further, it will explain how, in Australia, statutory and contractual adjudication can (and should) happily coexist.

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FEATURE
Is the ‘elephant test’ the best approach to defining practical completion?
Shona Frame


 Practical or substantial completion of a construction project is notoriously difficult to pin down with a definition. The editors of Keating on Construction Contracts note that practical completion is ‘perhaps easier to recognise than to define’. Through various cases, the courts have attempted definitions so that there are now a number of candidates for this.

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FEATURE
Scheduling (programme) analysis: hired gun advocacy or effectively meeting a burden of proof?
Donald G Gavin and Robert M D’Onofrio

There is an undeniable need for logical, factually supportable and credible evidence to assist in calculating delay, time extensions, concurrency and compensability as well as liquidated damages and actual damages. Yet the differing methods of scheduling (programme) analysis can lead to distrust and rejection of some or all resulting evidence. This is a universal dilemma as is apparent from the decisions from numerous countries. The authors suggest a series of best practices that should improve upon the reliability of such evidence and increase its acceptability.

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FROM THE CONSTRUCTION LAW CAMPUS
Passing on the torch of learning in the ‘primordial soup’ of construction law.

Matthew Bell and Dr Paula Gerber

Reflections from the Construction Law Academic Forum, 2012

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DAVID THOMAS QC
Contractual obligations of good faith

It is generally accepted, certainly in Australian jurisprudence, that the good faith standard requires subjective honesty from the contracting parties. Beyond this, the standard requires contracting parties to have regard to legitimate or reasonable expectations of the other party. This does not require altruism, subjugation of self-interest or disregard of one’s own commercial aims. It simply requires a party to recognise that, in the course of the relationship, its actions may affect the other party so as to defeat that party’s reasonable expectations.

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AN EXPERT WRITES...
Limitation periods in construction law: an international overview and comparison, exemplified by common and the civil law jurisdictions

Dr Stefan Osing and Fabian Neumeier

This article shows how different jurisdictions around the globe approach the issue of time limitation in the world of construction. It also provides an overview of different limitation periods in different countries.

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From ICP-Net
Damage control: reconciling deducted delay damages and actual damages

Précis by Raeesa Rawal

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