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Construction Law International - September 2020 - From the Co-Chairs

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Dear fellow ICP members,

During the past few months, we have all witnessed in astonishment and horror how the Covid-19 pandemic has affected millions of lives all over the world. At the time we write this column, many countries are still struggling to control the expansion of the virus, while others have succeeded in that effort, in most cases at great cost. For the most part, it is now evident that, albeit controlled, coronavirus will remain among us for a long time and we will need to continue to adapt to a new normality everywhere.

Although the greatest loss of all is painfully measured in human lives, the negative impact that this health crisis has had, and will probably continue to have for some time, on the global economy is yet to be determined. With jobs lost, businesses forced to shut, in many cases permanently, national economies brought to the brink of bankruptcy, industries collapsing and global trade and exchange of goods and services suffering from closed borders and protective measures, many experts anticipate than the socio-economic losses of the Covid-19 crisis will be the worst in decades[1] – the paradox of a globalised world.

The construction industry in general has not been exempt from these negative effects. In addition to the interruption of construction projects based on government-imposed activities’ restrictions, social distancing and isolation measures and lockdown orders, this global crisis, like no other before, at least since the Second World War,[2] has caused massive disruption in the construction supply chain, unmeasured cost overruns and delays and recalculation of costs, among many other effects.

This crisis has put construction contracts, courts and arbitration panels to a heavy test, particularly when it comes to interpreting and applying concepts such as force majeure, hardship and frustration of purpose, all originally thought to address situations with a defined geographical and temporal scope, but which do not seem to fit well in the context of the global scale of the problem and the uncertainty derived from the fact that no one knows for sure for how long the world will continue to live in total or partial quarantine.

It is often said that there is an opportunity in every crisis. The word ‘crisis’ derives from the Greek ‘Krísis’, which refers to an ‘act of separating, decision, judgment, event, outcome, turning point, sudden change’. This etymological look sets the perfect framework to a great challenge ahead for all those who work in the construction industry: use the present situation as the kick-off to rethink contractual provisions aimed at mitigating non-performance obligations and risk allocation, turn to collaborative ways to address contracts and projects and decisively embrace alternative dispute resolution mechanisms focused on the projects and providing for more sustainable ways to build contractual relationships.

The ICP Committee, as one of the world’s pre-eminent organisations fully devoted to the investigation, debating and dissemination of construction law, is in a privileged position to lead these efforts. Our membership expands all over the world and encompasses all existing legal backgrounds, providing a unique environment for discussion of ideas and perspectives. We encourage our membership to take up the challenge and reach out to our officers with their suggestions and ideas on projects aimed at addressing and understanding the new realities and the shift in paradigms that the crisis will leave.

The pandemic also created an opportunity in terms of relationship building and committee activities. Forced by travel and events restrictions all over the world, all our in-person events for this year have been cancelled or postponed. This gave us the motivation and the energy to jump very quickly, and with no previous experience, into the world of on-line events and webinars, aiming at keeping our community active and connected.

As of today, the ICP has organised five webinars (three of which took place in June, July and August, with two expected for September and October), is working closely with the International Bar Association to put together a full virtual program for November in lieu of the IBA Annual Conference and has booked a date for our annual Open Business Meeting, which will take place virtually on Wednesday 11 November at 1300 BST (more details to follow in due course). To learn more about our webinars (past and upcoming) please visit the dedicated webinars page on the IBA website.

We have also been active in increasing the diversity and openness of which we are very proud. Our Diversity Officers are working hard to ensure that our functions present diverse and enriching perspectives and views, with male and female speakers coming from different geographical and legal backgrounds. We are also working on a project specifically dedicated to diversity and inclusion in the construction industry at a global level, which will focus on successful ways to overcome difficulties based on personal stories and lifetime achievements. More details on this project will be released soon. We welcome members to contact our Diversity Officers, Aarta Alkarimi and Kwame Amankwah-Twum, to find out more and learn about ways to collaborate.

The ICP has always been open to attracting new members and providing tangible and immediate opportunities to get involved. In addition to the possibility of publishing papers and articles in our exclusive magazine Construction Law International (for which purpose members are welcome to contact our Editor and Deputy Editor, Tom Denehy and China Irwin, respectively), members and particularly newcomers are regularly invited to participate as speakers in our functions through open calls for expressions of interests, distributed by the IBA.

This year, we have also launched the Toolkit for Construction Projects initiative. The ICP will issue a booklet collecting best advice from all over the globe about all stages of construction projects and key issues to be considered under all possible aspects. The toolkit is divided along the lifetime of a project – from initiation to completion to dispute resolution. Each contributor may choose a topic of preference, which allows many contributors and distribution of the workload on many shoulders. An example of such a work product launched by the IBA is the IBA Toolkit for Award Writing, which can be found on the IBA website. All those interested in contributing to this project, please contact our Membership Officer, Rouven Bodenheimer.

In addition to these projects, our three Subcommittees are always working on ongoing projects and thinking of new ones. If you are interested in getting involved or have an idea or suggestion you would like to share, please do contact our Subcommittee Co-Chairs, Jane Davis-Evans and Ioannis Vassardanis (Dispute Resolution), Sarah Sinclair and Julio Bueno (Project Establishment) and Erin Miller-Rankin and Thiago Moreira (Project Execution).

Finally, we have been working along with our Website Officers, Sam Moss and Jarleth Heneghan, and the IBA on other ways to enhance communication with members going forward. Significant progress has been made on this front and we hope to make announcements very soon.

Jawaharlal Nehru, the independence activist who led India as its first Prime Minister from its establishment as an independent nation in 1947 until his death in 1964, once said: ‘Crises and deadlocks when they occur have at least this advantage, that they force us to think.’ This crisis makes us think in relation to technology, diversity, collaboration, inclusion, innovation, sustainability, openness and team effort. These are the words that will define the years to come and that will necessarily have a crucial impact in the global construction industry. The ICP Committee is ready to take up the challenge, evolving into new stages of connectivity and knowledge sharing, and we count on every member to help us to achieve these goals.

We wish you and your families, friends and colleagues well.

 

Shona Frame

shona.frame@cms-cmno.com

 

Ricardo Barreiro-Deymonnaz

rbarreiro@bodlegal.com



[1] ‘Covid-19: Socio-economic impact’ United Nations Development Programme  www.undp.org/content/undp/en/home/coronavirus/socio-economic-impact-of-covid-19.html accessed August 2020.

[2] ‘Coronavirus: World Bank confirms deepest recession since World War Two’ UN News (8 June 2020) https://news.un.org/en/story/2020/06/1065902 accessed August 2020.